Moor v. Folsom

*343 JBy the Oourt.

GileillaN, Cb. J.

After a promissory note became due, the maker and holder agreed, that if the former would procure defendant to endorse it, the latter would extend the time of payment about ten months.

The defendant, at the request of the maker that he would endorse a note for him, but without any knowledge of said agreement, wrote his name on the back of the note, at the same time writing over his signature the date of his signing. In consequence thereof, and relying thereon, the holder extended the time of payment about ten months, whether by oral or written agreement, does not appear. At the end of the time payment was demanded from the maker and refused, and notice thereof given to defendant. If upon these facts defendant is liable, it is immaterial in what character, whether as maker, ■ endorser or guarantor. At the time of his endorsing, the note was outstanding and past due. It is contended that the transaction is equivalent to the taking uj) and re-issuing of the note, that in law it became a new note. If so, as it was past due, and as it was not altered in respect to the time of payment expressed in it, it was in effect payable on demand, and the defendant, if treated as an endorser, would have the right to a demand and notice within a reasonable time. Whether they were within a reasonable time is not found. Prom the facts found, prima faeie they were not. In such case too the endorser would be discharged by the agreement, made without his consent, for forbearance.

It is also argued that the endorsement by defendant, gave the maker or holder authority to alter the note so as to make it payable at a different time from that expressed in it, and that it is therefore analogous to those cases, where one makes or endorses a bill or note with blanks in it, and *344 delivers it to another to fill the blanks, and put it in circulation. If the endorsing by defendant were sufficient, under the circumstances, to authorize the maker or holder to alter the note, and make it payable at, a different time, the case still differs from those cited, in this, that such alteration was not in fact made. No recovery was ever had on a note imperfect by reason of blanks, whatever authority there may have been to fill them. To make this analagous to those cases, (admitting the authority to alter,) the time of payment should have been altered in the note. An agreement between the maker and holder, independent of, and not inserted in, or made a part of the note, could not have the effect of an alteration, so as to make defendant liable as maker or endorser, beyond the legal effect of it, as it appears on its face. The note, however, cannot be considered as taken up and re-issued. It never ceased to be the property of the holder’. The agreement to forbear, did not make it a new note. The case does not come within the class where one signing his name on the back of a note is held as a maker. In those cases the signature was given at the time of making the note, or in so short a time afterwards, -and under such circumstances as to have relation to the making of the contract originally. Oxford Bank vs. Haynes, 8 Mass. 423 .

The defendant cannot be held as maker or.indorser. Can he be held as a guarantor ? In the case of an indorser, the mere signature is sufficient, the law imports the contract. It is otherwise with the guarantor. His contract being a collateral one, to answer for the debt of another, must, under the statute of frauds, be evidenced by note or memorandum in writing, expressing the consideration. The mere signature on the back of the note is not sufficient.

"Where one endorses a note for the purpose of assuming *345 the liability of a guarantor, the act is held to authorize the holder to write over the signature the contract of guaranty in full, and that being done, it is a sufficient note or memorandum in writing to take the case out of the statute. Beckwith vs. Angell, 6 Conn., 315 ; Ulm vs. Kittridge, 7 Mass., 233 ; Tenney vs. Prince, 4 Pick., 385 ; Nelson vs. Dubois, 13 Johns, 175; Campbell vs. Butler, 14 ib., 349 ; Tillman vs. Wheeler, 17 ib., 325.

• But without the contract being so written out, there can be no recovery as on a contract of guaranty. As it was not done in this case, it is unnecessary to consider whether npon the principle of estoppel, or otherwise, the maker or holder had authority to do it.

The judgment below is affirmed.