Enterprise Brewing Co. v. Canning , 210 Mass. 285 ( 1911 )

Hammond, J.

“ In the absence of any proof to the contrary, the parties to a promissory note are liable on it according to the legal effect of the instrument; that is to say, the maker is liable to the payee and indorsees, the payee to the indorsees, and each indorser to the subsequent indorsees. It may be proved by paroi that the relation of the parties to each other is different from this; for example, that the payee or indorsee was the real principal, or that all the parties were joint principals, or some of them joint sureties.” Sweet v. McAllister, 4 Allen, 353, 354. According to this general rule the defendant is liable to the plaintiff for the whole amount unless by agreement between themselves they were joint guarantors or joint sureties, in which case the defendant would be liable to the plaintiff for only one half of that amount.

. We think the evidence insufficient to show such an agreement either express or implied. The defendant testified “that she never had any talk with the plaintiff about signing the note, but that she knew the plaintiff signed it with her, and that the note was given to raise money at the bank for her husband.” The evidence of Myers does not show or tend to show any such agreement. See Sweet v. McAllister, ubi supra. The fact that in the series of renewals, of which the note in question seems to have been the last, there was a change in the order of the indorsements or guarantees does not raise any presumption of such an agreement. Even although the defendant was a prior indorser or guarantor of some of the former notes, the change in the order is as consistent with the view that it was made as a condition of the plaintiff’s consent to a renewal as with the view that it was made inadvertently or as a matter of indifference. See Palmer v. Field, 27 N. Y. Supp. 736. The maker of the note to whom if anybody such an agreement should be known, although called as a witness, says nothing of such an agreement. The ruling of the presiding judge on this matter was correct.

The defendant contends that she should not be held for costs on the ground, as she alleges, that the declaration is not in the form of an action against a co-surety, but there is nothing in this. There is no evidence that she was a co-surety.

Exceptions overruled.