Uhler v. Farmers' National Bank , 1870 Pa. LEXIS 380 ( 1870 )

The opinion of the court was delivered,

by Agnew, J.

— Michael Uhler was the payee and first endorser of the note in suit. His endorsement was a primary though conditional promise to pay the note to the plaintiff. The demand and notice necessary to make his undertaking absolute, weré only acts to be done under the promise. The direct character of this liability was not changed by Uhler’s promise to continue responsible on his endorsement, if the bank would wait for its dividend of the estate of the drawer, and in the mean time would treat the non-payment of the note as no bar to his obtaining future accommodations. It'was still for the same debt to the same creditor, and for the new consideration moving from the creditor to himself. The general rule of banks to refuse accommodations to the parties on protested paper, is one of great utility in enforcing payment; and its waiver by the bank is an undoubted benefit to a party on the dishonored note. The promise is not within the Statute of Frauds merely on the ground that the debt is also that of another: Malone v. Keener, 8 Wright 107; Arnold v. Stedman, 9 Id. 186. Read, J., said, in Malone v. Keener, that the general principle which prevails in all cases under the 4th section of the Statute of Frauds, from which our act is taken, is, that whenever the defendant’s promise is in effect to pay his own debt, though that of a third person be incidentally guarantied, it is not necessary it should be in writing. Ample authority is referred to in those cases. The argument of the plaintiff in error admits that the facts were not disputed, but alleges error on the ground that the learned judge treated the ease as one of a mere waiver of protest, instead of a new promise to pay, falling within the Statute of Frauds, because not in writing. In strictness of terms a waiver of protest is an agreement made before or at the time of maturity of the note, and a promise to pay made after maturity, notwithstanding there had been no protest, is a new undertaking. But this undertaking is still primary on the part of the defendant, and not a mere or naked promise to pay the debt of another. The endorsement of the defendant was a transfer of title to the note, and a promise to pay it on failure of the drawer to do so, for a consideration proceeding to him from the subsequent endorser, or to the drawer at his request, evidenced by the fact of endorsement. The defendant as endorser is therefore a party to the debt, conditionally bound for it. His promise to continue his liability to the creditor from whom the consideration had moved to himself or to the drawer at his request, cannot therefore be said to be a new and independent promise within the Statute of Frauds. It is not a mere promise to pay the debt of another, having no other foundation than his express agreement to pay it. This distinguishes it clearly from Maule v. Bucknell, 14 Wright 39. The endorsement connected the defendant directly with the note and with the holder, and bore on his own interests as a party to it by barring his title to future accommodations from the holder. He stood in privity both with the debt and the creditor, thus making the new consideration a potent element, and his promise to continue liable on his endorsement a primary liability. Maule v. Bucknell was the ease of a promise by a third and disconnected party to pay the debts of the Eastern Market Company, with which the promissor had no prior connection or privity. It was wholly collateral and independent, and was essentially a new and mere undertaking to pay the debts of another, and on that account was held to be within the Statute of Frauds, notwithstanding the existence of a new consideration. But here the defendant is bound to the note by a ligament he oannot sever — he cannot wipe out his name — his endorsement is there, the channel of the plaintiff’s title, and the evidence of his own dishonored credit. When he promised payment, therefore, he did not assume the mere debt of another, but he relieved himself from personal discredit, and reassumed a position he already had sustained to the debt and to the creditor.

But it is now said the judge in the court below ought to have submitted to the jury the question of fact, whether the plaintiff' had refused accommodations to the defendant on account of the protested paper. It is a sufficient answer to say that no such question appears to have been made. Not one of the six points of the defendant refers to this question, no such error is assigned, and not a word is said upon it in the printed argument. The defendant had some paper discounted, and some not, but he gave no proof that any was thrown out on account of the protest, while the plaintiff had given evidence by two witnesses that the discounts were not refused on account of the dishonored paper. More than this was not promised by the plaintiff.

It was too late to take advantage of the non-joinder of other parties as defendants. Besides that, the evidence was strongly indicative of individual promises, the several endorsers remaining bound by their endorsements; and not by a joint undertaking.

Upon the whole case finding no error,

The judgment is affirmed.