Levy v. Webster ( 1910 )

King, J.

John H. Webster, one of the defendants, gave the note in suit to save himself from being committed tojail on a writ against him in an action of trover. At the time the note was given, at his request, the other defendant, Eliza J. Webster, signed an indorsement on the back of the note "I hereby guarantee the. payment of the within note.” This is an action of assumpsit against the defendants jointly on the note, and the defense was duress. The presiding Justice instructed the jury that no duress had been proved that would avoid the contract of Eliza J. Webster and directed a verdict against her. By agreement of counsel a verdict was also directed in favor of John H. Webster. The case comes before this court on exceptions by Eliza J. Webster and upon her motion to have the verdict against her set aside on the usual grounds.

It is elementary law that a guarantor is not suable jointly with the maker of the principal contract. Their contracts are distinct and not joint. The guarantor must be sued separately upon his contract of guaranty, and not jointly upon the principal contract, Reed v. Cutts, 7 Maine, page 189; Smith v. Loomis, 72 Maine, page 55. The contract of Eliza J. Webster was, by its express terms, that of a guarantor. The evidence established separate and distinct contracts and not a joint contract. Accordingly the entry in this case must b‘e that the verdict ordered against Eliza J. Webster be set aside and a new trial granted.

So ordered.