Way v. Butterworth , 108 Mass. 509 ( 1871 )

Ames, J.

If A. F. Butterworth signed his name upon the back of the note at the time when it was made, or at any time before it was delivered as a valid and binding contract to Manuel, he must be considered as an original promisor, and paroi evidence would not be admissible to show that such was not his real contract. Union Bank v. Willis, 8 Met. 504. Brown v. Butler, 99 Mass. 179. In favor of a bond fide holder, it is presumed that the promise of such an indorser was made at the same time with the note. This, however, is not a conclusive presumption. This defendant would have a right to show that the fact was otherwise, and that his contract was not made until after the note had taken effect as a binding contract; and if he should succeed in proving it to be so, he might either not be chargeable at all, or chargeable as surety or guarantor, according to the facts proved. Wright v. Morse, 9 Gray, 337. If he placed his name in blank upon the back of the note after it was given, he could not be held as an original promisor. Mecorney v. Stanley, 8 Cush. 85. Courtney v. Doyle, 10 Allen, 122. Upon the report, we cannot say that there was no evidence to rebut the presumption that his name was placed there as a part of the original transaction. It was wholly a question of fact, to be decided by the jury. It was therefore a mistake on the part of the court to rule that, as a matter of law, the defendant was liable as a joint promisor, and that the plaintiff was entitled to a verdict on that ground against this defendant. Rey v. Simson, 22 How. 341. Under the declaration, there is no occasion to consider whether he could be held liable as a guarantor.

It was correctly ruled that the Bank of the Metropolis, which was the office of a private banker, was not a bank at which the note was made payable by the terms of the contract. Way v. Butterworth, 106 Mass. 75. We do not find in the report any evidence whatever tending to show that the maker of the note had agreed to use and treat the plaintiff’s place of business as a bank. It follows therefore that there was no proof of presentment of the note for payment according to its terms, and for want of such presentment Manuel cannot be charged as an indorser, unless he has waived the omission.

The exceptions of both defendants, Manuel and A. F. Butter-worth, are therefore

Sustained.