Fiske v. Pratt , 154 Mass. 367 ( 1891 )

Allen, J.

It is not necessary to determine whether the instrument declared on is or is not properly described in the declaration as a promissory note. The instrument itself being fully set forth by copy, together with the original contract under which it was given, and which is therein referred to, the undertaking of the defendant’s testate may be ascertained, and it appears to us that the responsibility which she assumed was no greater than that of an indorser of a note. By the original contract she agreed to indorse the note. The instrument called a note twice refers to indorsers, and her signature is prefixed by the words “ indorsed by.” Whether technically an indorser or not, her responsibility is no greater than- if she was an indorser. It is as if she stipulated for notice in case of non-payment by the principal promisor. She was entitled to such notice. There being no averment that such notice was given, the demurrer was properly sustained.

Judgment for the defendant affirmed.