Worcester Mechanics' Savings Bank v. Hill , 113 Mass. 25 ( 1873 )

Endicott, J.

The plaintiffs having commenced a suit against Keith, the maker of the note, the defendant agreed to indorse the same, as guarantor, and the plaintiffs agreed to withdraw the suit. In pursuance of this agreement, the defendant wrote his name on the back of the note, and the plaintiffs withdrew the suit against Keith. The defendant thereby for a valid consideration became the guarantor of the note. Mecorney v. Stanley, 8 Cush. 85. Boyd v. Freize, 5 Gray, 553. He now seeks to avoid his liability for the reason that it did not appear and he did not know at the time he signed his name, that the sureties were discharged by the statute of limitations. Without considering the question how far this fact is disclosed by the note itself, we are of opinion that he cannot avail himself of this defence. There was no fraud, no representations were made to him on the subject, and there were no facts connected with the liability of the parties to the note, which the plaintiffs were required to disclose. By an agreement with Keith, and upon a consideration, moving from him, he guaranteed this note as it then was, and the plaintiffs thereupon withdrew their suit. It is entirely immaterial whether the sureties were discharged, or would avail themselves of the statute or not; he must pay according to his contract. The case does not differ in principle from Veazie v. Willis, 6 Gray, 90, and Jones v. Thayer, 12 Gray, 443.

Nor is it a valid defence that it did not appear that the sureties were not responsible, or that any effort had been made to collect from them. Judgment on the verdict.