Fidelity & Casualty Co. v. Vandyke ( 1896 )

Atkinson, Justice.

Whether YanDyke be treated as a surety or guarantor,, his agreement amounted to nothing more than an engagement upon his part that the maker of the note should pay ar least $150 upon the sum for which it was given. When that sum was paid by the maker, YanDyke was discharged. This sum was paid before the institution of the suit, and it was urged in reply to the demurrer, that it did not appear •that the indorsement under which YanDyke bound himself was made before the payment of -that sum. The presumption would be, inasmuch as he undertook to guarantee a specific portion of the debt, that his engagement was entered into at the time of - the execution of the note, ■otherwise the declaration would h-ave alleged, the fact that he had signed the indorsement under such circumstances as would make him absolutely liable for the sum still due upon the note. In the absence of such an allegation, it will be presumed not to be true. Pleadings are taken most strongly against the pleader, and the presumption is that he has alleged in the declaration all facts consistent with the truth which would impose a liability upon the defendant. There being no allegation in the declaration that the indorsement was made after the payment of the sums credited upon the note, and it appearing that the sum guaranteed by the defendant has been paid by the maker, the declaration, as against the guarantor, set forth no cause of action, and was properly dismissed on demurrer.

Judgment affirmed.