Austin v. Boyd , 41 Mass. 64 ( 1835 )

Morton J.

It is well settled by a series of decisions in . this Commonwealth, that where a person not a party to a note puts his name upon it, he thereby makes himself an original promisor. He must intend, by signing his name, to give some strength to the note and to incur some responsibility. He cannot be an indorser, because the note is not payable to him and perhaps is not negotiable. If he does not make himself liable as promisor or guarantor; the act is nugatory and unmeaning. If it be done when the note is given, this will constitute a good consideration ; for the payee must be presumed to part with the value for the promise of the parties to the note. In this case, although the note was made several days after the lease, yet it was in execution of the agreement for it and a part of the same transaction. The defendant put his name the note before it was accepted by the plaintiff.

The name of the plaintiff appears to be written upon the note over the defendant’s. The apparent effect of this would be to change the character of the contract; to convert an original promisor into a second indorser ; and to discharge the defendant from all liability to the plaintiff. This effe :t the plaintiff certainly did not intend to produce. It was an inadvertence on his part, which, as no other persons were inter ested in the note, and as it would do no injustice to the defendant, he might erase and restore the contract to its original form.

We have no doubt of the admissibility of the parol evidence to explain the circumstances under which the erasure was made. It was not to control or vary a written contract, but to account for a fact which might affect the validity of the note.

Judgment on the default.