Ulmer v. Reed , 11 Me. 293 ( 1834 )

Meelen C. J.

delivered the opinion of the Court.

The note in question has been properly considered by the plaintiff’s counsel as the joint and several note of the defendants, and payable on demand. The question then is, what construction is to be given to the words “ surety 90 days from date,” written opposite to the name of Kimball. From their position, they evidently indicate some qualification or condition applicable to him only; as the word surety could not in any manner apply to Reed the principal debtor. They were intended for some purpose and are not to be disregarded. We are of opinion that the only sensible construction which can be given to them is, that Kimball was intended to be held responsible as surety for ninety days and no longer; and that this limitation was to be a bar to any action against him^after the expiration of theTabove term, though during that term he was surety for the ability of Reed to pay the amount of the note. Now it appears that he did continue solvent and in possession of property sufficient to pay it for more than a week after the end of the ninety days. This is the construction given to the memorandum by the plaintiff himself. The counsel for the plaintiff says the words are ambiguous ; if so, the declarations made as to their meaning and design, were proper evidence, as the confessions of the plaintiff, who must have known for what purpose they were inserted. On this principle, Kimball is not chargeable; and as the action is brought against both the defendants jointly, it cannot be maintained without proof of a joint promise binding on both; and such a promise is not proved. We do not perceive that the case would in any degree be changed if Kimball Avas privy to the affairs of Reed and to the measures adopted by Ulmer for the purpose of securing the debt out of Reed’s property, as he was legally discharged before that time, a friendly act on his part would not involve him in any liabilities. . The nonsuit is confirmed, and there must be

Judgment for defendants.