Nesbit v. Bradford , 6 Ala. 746 ( 1844 )

GOLDTHWAITE, J.

1. The sufficiency of the several Special counts of this declaration will be best examined after ascertaining the legal effect of the indorsement made by the defendant in the W2'iting obligatory of Likens, but which is set out in haec verba in one or more of the special counts. In Granniss & Co. v. Miller, [1 Ala. Rep. N. S. 471,] we held that the words, “1 assign and guaranty the payment of this note, waiving demand and notice,” was not an absolute and unconditional promise to pay the amount of the note presently; also, that it was not necessary, for the purpose of establishing the guarantor’s liability, to show a suit prosecuted against the maker in the mode directed by the statute defining the liability of indorsers of notes not payable in ban.k. We then considered that the legal effect of such a contract was a promise to pay whenever the maker was ascertained to be unable to do so. The guaranty in the present case, in terms, is not materially different from the one in the case just cited. There, however, the plaintiffs derived their title to the note through the indorsement; but in this case, the defendant never was the holder of the note. In Jordan v. Garnett, [3 Ala. Rep. 610,] we held that an indorsement made by a person upon a note to which he was not a party, either as payee or assignee, was not within the statute previously adverted to, but that its legal effect was to impose on the indorser a liability in the event that the amount due could not be collected from the maker by the use of proper diligence; and that suit against the maker to the first court must be brought unless excused by the insolvency of the maker. In Milton v. De Yampert, [3 Ala. Rep. 648,] the indorsement was also made by a person not a party to the note, but‘it was indorsed previous to its maturity, and was payable in bank. We then held the indorsor to be charged after demand and notice in the ordinary mode. We also came to the conclusion that, “Whenever the security, upon which the imperfect in-dorsemet is written, may be the subject, either of assignment or indorsement, the imperfect indorsement must be governed by similar rules to those which are applicable to perfect indorse-ments; and a similar degree of dilligence is necessary to charge one who becomes bound by an imperfect indorsement as is necessary to charge an actual indorser.” These cases will enable us, without difficulty, to determine that Bradford’s undertaking is not within the statute defining the liability of indorsers; and the dilligence imposed on the holder of the note was, to sue the maker at the first court, if solvent. But they also establish, that such a suit is unnecessary whenever the maker is unable to pay by reason of insolvency.

2. It is said, however, that this indorsement does not specify the person who is contracted with, and that, as the contract itself is not negotiable, a direct averment is necessary to show it to have b'een made with the plaintiff. However the law may be with respect to the negotiability of such an engagement as this, we think the prima facie intendment, when the indorsement is considered in connexion with the bill single, is, that the promise was made to the payee.

3. Another objection has been urged, that this is not of that class of writings which import a consideration; and, therefore, it is insisted, a consideration must be shown in the declaration, inasmuch as the promise is to pay the debt of another. The decision in Click v. McAfee, [7 Porter 62,] is a full answer to^this objection in all its aspects. -

We are warranted, then, in stating the legal effect and prima facie intendment of this indorsement by Bradford to be a promise to the plaintiff to pay him the amount of the writing obligatory previously executed by Likens, in the event that he should prove unable to pay after using due dilligence to collect it from him in the first instance, or in the other event of his inability to pay by reason of insolvency.

4. All, then, which is necessary to be stated in a count upon this guaranty, is, that the writing obligatory was made by Likens setting that out according to its terms; that the guaranty was made according to its terms, or according to its legal effect; the failure by Likens to.pay; and the facts from which due dilli-gence is to be inferred, or his insolvency, which renders any dil-ligence unnecessary. These, with a sufficient breach, it is believed, would constitute a sufficient declaration, as proof of the same facts would authorize a recovery. [Adams v. McMillan, 8 Port. 445.] The first and last counts contain all these allegations and averments; and, therefore, we consider them as substantially good, though both are somewhat inartificially worded.

5. The other two special counts are, in form and substance, counts upon a promise to pay the note in consideration of forbearance; and no other objection is taken against them than the omission to insert the precise day to which forbearance was agreed to be given. If a day certain was inserted wherever the blank space occurs, it would be competent for the plaintiff to prove a day different from the allegation. Such a defect is matter of form, and not of substance, and cannot now be reached by demurrer. [Estill v. Shelly, 2 Porter, 185.]

It is unnecessary to swell this opinion by considering the question raised by the bill of exceptions; as what has already been said, is sufficient to show the error in sustaining the demurrers, and to govern the subsequent action in the suit.

Judgment reversed, and remanded.