Colburn v. Averill , 30 Me. 310 ( 1849 )

Howard, J.

The plaintiffs, as payees, sued the defendant as promisor of a note, upon the back of which his name appears in blank. The principal question presented by the report, is, whether he can be regarded as an original promisor.

It has been familiar law in this State, before and since the separation from Massachusetts, that, when a person, as in this case, not the payee of a promissory note, writes his name upon the back of it, at its inception, in blank, he is to be regarded as a surety and an original promisor; although no case embracing the doctrine, in terms, appears in our reports.

While different Courts, of high character, sustain, vary or deny this doctrine, all concur, that thus writing the name upon the back of the instrument constitutes a contract, which is to receive a reasonable and an available construction. We hold, that there are certain general rules, and principles to be followed in the interpretation of such contract, in the absence of other evidence, which may lead to satisfactory results, amid conflicting decisions.

The contract is to be construed as it was at the time it was made. If made at the inception of the note, it is to be presumed to have been for the same consideration, and a part of the original contract, expressed by the note. If made subsequently to the date of the note, and without a prior indorsement by the payee, it is to be presumed to have been for a different consideration, and the party will be regarded as a guarantor; but if made after a prior indorsement by the payee, the law presumes it to have been done in aid of the negotiation of the note, and the party will be treated as a subsequent indorser. If made without date, it will be presumed to have been made at the inception of the note. Chitty on Bills, 214, note; Story on Promissory Notes, § 59, 472—481, and notes; Hunt v. Adams, 5 Mass. 358; Moies v. Bird, 11 Mass. 436; Baker v. Briggs, 8 Pick. 122, 130; Bank v. Willis, 8 Metc. 504, 510; Chaffee v. Jones, 19 Pick. 263; Austin v. Boyd, 24 Pick. 66; Emery v. Vinal, 26 Maine, 305; Parks v. Brinckerhoff & als. 2 Hill, 663; Pinkerton v. Bailey, 8 Wend. 600.

Upon the application of these principles, to this case, the defendant must be regarded as an original promisor.

Payments were made by the signers to the face of the note, and indorsed upon it, before the Revised Statutes took effect, and within six years next preceding the commencement of this action. This placed the note in a position not to be affected by the statute of limitations, as to all the promisors. R. S. c. 146, § 27; General Repealing Act, § 4; Act of Amendment, of chap. 1, § 4, of R. S. (c. 1, 1841;) Pike v, Warren, 15 Maine, 392; Shepley v. Waterhouse, 22 Maine, 497; Parsonage Fund v. Osgood, 21 Maine, 176; Crehore v. Mason, 23 Maine, 413; Hunt v. Brigham, 2 Pick. 581; Sigourney v. Drury, 14 Pick. 387; Story on Promissory Notes, § 57, 58.

The ruling of the presiding Judge was correct, and judgment must be entered upon the default, according to the agreement.