Jones v. Dow

W. Allen, J.

The allegation, “ by means whereof the other defendants became liable and promised to pay said note at its maturity to the lawful holder thereof,” is a statement of an erroneous inference of law, and may be rejected. An allegation of the pleader’s conclusion of law from facts pleaded is not traversable, and is not admitted by demurrer; Hollis v. Richardson, 1 3 Gray, 892 ; Gould Pl. c. 7, § 48; c. 9, § 29; Everett v. Drew, 129 Mass. 150 ; it need not be made; M’Gee v. Barber, 14 Pick. 212 ; and, if made, may be rejected as surplusage. Tucker v. Randall, 2 Mass. 283 . The objection, that, without this, there is no express allegation that the guaranty was made to the plaintiff, cannot avail if, from the facts which are well pleaded, the law will infer that the promise was to him.

Baldwin v. Dow, 130 Mass. 416 , was an action upon a guaranty of the same form, and given by the same parties, and under the same circumstances, as the one in suit. No question of pleading was raised in that case; but it decided that facts like those alleged in the plaintiff’s declaration showed a guaranty to a person who first accepted the note as a valid contract, and advanced money to its maker upon its credit. The declaration in this case alleges, in effect, that the plaintiff was the first indorsee and holder of the note for value, but it does not allege that he advanced money to the maker upon it, nor what consideration he gave for it; and that presents the only question left open by Baldwin v. Dow . The objection is, that the consideration paid by the plaintiff for the note is not specifically and certainly set forth in the declaration. The allegations are, that the payee, acting for the maker, indorsed the note, and sold and delivered it to the plaintiff for a valuable consideration paid *122 by him. This is a sufficient statement of the consideration of the indorsement of the note, and a sufficient allegation that the plaintiff is the first indorsee and holder of the note for value; but it is defective if it is taken as the statement of the consideration of the defendant’s promise, for that comes under the general rule that the consideration of a simple contract must be set forth, and not under the exception relating to commercial paper. We think this is not to be taken as the allegation of the consideration of the defendant’s promise, but as designating the person to whom the promise was made.

The declaration states the consideration of the guaranty; that it was made at the request of the maker, for its benefit, to give credit to the note, and aid the maker in negotiating it. This sufficiently sets forth a consideration for the guaranty. Baldwin v. Dow, ubi supra. But the guaranty, no person being named in it and not being negotiable, would, if nothing more appeared, be taken to be made to the payee of the note; and, in an action upon it by the payee, no further statement of consideration would be necessary. But the further allegation, which is made, that the payee was acting for the maker, and that the maker and the payee were in effect the same person, shows that, not the payee, but the one who should take his place as the first holder of the note for value, was intended as the promisee in the contract of guaranty. The note is payable to the order of Pratt, and the first holder must therefore be the first indorsee, and the promise is to him. The promise must be to a party to the note, and to that party who first acquires a right of action upon the note against the maker. So far as the consideration of the promise moved from the promisee, it consisted in taking the note as first indorsee, and not in lending money to the maker of the note. It was the payment of the note, not the repayment of the consideration given for it, that was guaranteed; and it was immaterial to the defendants what that consideration was; if the plaintiff has become a party to the note as first indorsee, their promise is to him. The construction of the contract is, that the defendants will guarantee the payment of the note to the person who shall become the first indorsee under the law merchant; and allegation and proof sufficient, as against the maker, to show that the plaintiff holds *123 that relation to the note, will be sufficient to show that he is the promisee in the contract of guaranty.

Interpreted in the light of the theory that the contracts are to be construed as if they were all executed at the time the note was delivered, and in the presence of all the parties, we find the same meaning. The allegations of the declaration then would be to the effect that the note was signed, and the guaranty and indorsement were signed for the accommodation of the maker of the note, the indorsement filled out to the plaintiff, and the note delivered to him as indorsee for a valuable consideration paid by him, all at the same time, and as one transaction. Upon such averments, the plaintiff would seem to stand in a position very similar to that of a payee to whom a note has been delivered.

The declaration alleges that Pratt, the payee, indorsed the note, and sold and delivered it to the plaintiff for a valuable consideration paid by him. This sufficiently sets forth the fact that the plaintiff was the first indorsee of the note for value, and, with the allegations in regard to the relations of the maker and payee, establishes the legal inference that the promise of guaranty was to the plaintiff. Demurrer overruled.