Emerson v. C. Aultman & Co.

Miller, J.,

delivered the opinion of the Court.

In this case an action of assumpsit was brought by the appellee against the appellant on the 1th of September, 1881. The declaration contains the common counts, and also a special count charging the defendant in the usual form as endorser of a promissory note dated the 1st of July, 1881, for $250, drawn by George S. Powell as maker, in favor of the plaintiff as payee, and payable on or before the 1st of January, 1883. The note is as follows:

“$250.00. Denton, Maryland, July 1st, 1881.

“On or before the first day of January, 1883, for value received in one Buckeye Self-Binder 6 ft., Ro.— I the undersigned of Caroline County, State of Maryland, promise to pay to the order of C. Aultman & Co., (an incorporated company under the general laws of the State of Ohio), of Canton, Ohio, two hundred and fifty dollars, payable at the office of Adams Express Company, at Ridgely, Md., with interest at six per cent, per annum, from date until paid. Presentment for payment and protest ‘ waived.'

“George S. Powell.”

*134 The defendant, Emerson, witnessed PowelPs signature to this note, and on the 9th of November, 1881, wrote upon the back of it and signed the following obligation:

“For value received I hereby guarantee the. payment of the within note at maturity, and any renewal of the same, and hereby waive protest, demand, and notice of demand and non-payment, and suit against the maker, and consent that the payment of this note may be extended from time to time, without affecting my liability thereon.” “Dated this 9th day of November, 1881.”

“William R. Emerson.”

The case was tried upon issues joined on the pleas of never indebted, and never promised as alleged, and upon the usual replication to the jilea of limitations.

The principal question raised by the exceptions is can this obligation 'be offered in evidence against the defendant under this declaration; and this depends upon the character and effect of the obligation itself. The law is no doubt well settled that in case of an ordinary and usual guaranty, as where one contracts in writing, to be answerable for goods sold -to a third party, or where in like manner one engages to pay a note in case the maker fails to pay the same, the contract of guaranty must be declared on specially, and it cannot be given in evidence under the common counts in assumpsit. Mines vs. Sculthorpe, 2 Camp., 215. The form of such a declaration is set out in 2 Chitty's Pl., (17th Ed)., 138, and in 1 Harr. Ent., 388. The reason for this is that in such cases it is necessary to aver and set out the conditions upon which, according to the terms of his contract, the liability of the guarantor arises.

But the obligation now before us is a peculiar one, and differs widely from that of an ordinary guaranty. *135 By it the defendant not only guarantees the payment of the note at maturity, hut in like manner guarantees the payment of any renewal of the same. But more than this, he waives not only protest of the note, but demand, and notice of demand and non-payment by the maker, and suit against him, and consents that the payment of the note may be extended from time to time without, affecting his liability thereon. Prom this it seems to us plain that lie has waived compliance with every condition the non-observance of which bythe payee of the note would, in an ordinary case, release a guarantor or surety from the obligation of his contract. In effect he tells the payee I will pay this note at maturity, and any renewal of the same you may choose to make. You need not protest it nor make demand of the maker, nor give me notice of such demand if made, or of his neglect or refusal to pay. Yon need not sue him, and you may extend the time of payment as often as you choose without affecting my liability, and the obligation says he agrees to all this “for value received” from the payee, who is the plaintiff in this action. We do not see what else he could have waived or agreed to in order to make his obligation to the plaintiff just as absolute and unconditional as if he had signed the note as joint maker with Powell, when it was executed. Such, in our opinion, is the true construction and effect of this instrument, and it is conceded that if this be so, it would be admissible in evidence under the common counts of this declaration.

It is said, however, upon the theory that this is a guaranty of the note, that to bind a party upon a collateral promise to answer for the debt, or default of another, it is necessary, under the Statute of Frauds, that the consideration as well as the promise should appear from the writing; and this no doubt has been the well settled law of England, ever since the case of *136 Wain vs. Walters, 5 East, 10, and is the undoubted law of this State. Wyman vs. Gray, 7 H. & J., 409 ; Elliott vs. Giese, Ibid, 457. But here the obligation or guaranty which was written upon the note nearly five months after its date, upon its face states the consideration to he “for value received,” and this we think gratifies the Statute and the decisions upon this subject. In fact this question was expressly decided by our predecessors in the case of Edelen vs. Gough, 5 Gill, 104 , where the Court speaking by Dobsby, J., held that the terms “for value received” were a sufficient expression of the consideration required by the Statute of Frauds in such cases.

From what we have said it follows there was no error in the rulings of the Court below in the first exception, and in rejecting the defendant's third, fourth, fifth, sixth, seventh and eighth prayers.

The other question in the case relates to the- admissibility and effect of the evidence of the witness, Urie Townsend, to remove the bar of the Statute of Limitations, and as to this very little need he said. It is very clear that if admissible, the admissions proved by this witness to- have been made to him by the defendant within three years before the commencement of this action, were sufficient to remove the bar of the Statute. According to this evidence the defendant admitted his liability upon this note, that it had not been paid, and his obligation to pay the same, and this admission was not accompanied with any qualification or declaration which, as between him and the plaintiff, if true, would have exempted him from a moral obligation to pay the same. It is said, however, that these admissions were made to the. witness when he was counsel for the defendant and were therefore privileged. But we have carefully read the testimony on this subject, and can find no evidence that the relations he- *137 tween tlxe witness and the defendant was that of attorney and client when the admissions were made, or that the former had ever beexx even the general counsel for the latter. All that the testimony shows is, that friendly relations had existed between them, and so far from the witixess being the counsel for the defendant in this transaction, the ixote had in fact been sexxt to liim for collection against the defendant by the plaintiff, and the defendant knew this when'the admissions in question were made. This being so it is needless to say more on this subject or to cite authorities in reference to privileged communications as between attorney aixd client. We, therefore, find no error in the rulings in the second exception, or in granting the plaintiff’s first and second, aixd in rejecting the defendant’s first and second prayers.

(Decided 13th June, 1888.)

Judgment affirmed.