Wylie v. Lewis , 7 Conn. 301 ( 1828 )

Peters, J.

The contract of an indorsement on a promissory note, whether negotiable or not, is too well understood to require arguments to explain its meaning, or authorities to en-, force its obligation. It is always a collateral undertaking, that the indorser will pay, if the maker do not, provided the holder use due diligence, demanding p ivment of the maker, in one case ; attaching his person or property, in the other; and in both, giving reasonable notice of the failure to the indorser. 1 Swift’s Dig. 435. In one case, we are governed by the English decisions under the statute of Anne, which we have recently adopted ; and in the other, by our own common law. In the case before us, the note is negotiable, on which the defendant, at the time of its execution, placed his name in blank, but was neither promisee nor indorsee, and therefore, not Indorser. Cui bono ? To what end ? This does not appear. The plaintiff counted on this indorsement, as if it contained an xpi ess written contract, subscribed by the defendant ; and the question now is, does this blank support an averment ?

A special contract must, in all cases, be precisely laid, and strictly proved ; for a variance is fatal. But such a contract is never implied. The legal import of this indorsement is an absolute engagement to pay, at all events ; though it might have been explained or varied by parol, according to the original agreement of the parties Beckwith & al. v. Angell, 6 Conn. Rep. 315 Mitchell v. Culver, 7 Cowen’s Rep. 336. 3 Kent’s Comm. 68. Sumner v. Gay, 4 Pick. 310. Tenney v. Prince, 4 Pick. 385.

But whether it imports an absolute or a conditional engagement, it certainly does not imply the consideration and contract stated in the declaration. An implied contract is where certain facts are proved, from which the law excequoet bono, raises a promise, or rather, enables the jury to find one. But in the case before us, the law is made not only to raise an express promise, but a written one ; and it might have been added, with equal propriety, a sealed instrument. This, certainly, is a novelty in pleading ; — an “ avis rara in ter-ris, nigroque similima cycno.”

I advise a new trial.

Lanman and Daggett, Js. were of the same opinion. Hosmer, Ch. J. dissented. Brainakd, J. was absent.

New trial to be granted.