Shaffstall v. McDaniel ( 1893 )

Opinion by

Mr. Justice Williams,

It is well settled that the payee of a non-negotiable instrument does not become an indorser by writing his name on the back of such instrument. Such act standing by itself imposes no liability on him whose name is so written: Leech v. Hill, 4 Watts, 448. But proof may be made to show the actual agreement of the parties under which the indorsement of the payee’s name was made. If the agreement was that the payee should become responsible for the payment of the note by the maker either as surety or as guarantor, such agreement may be enforced if made upon a sufficient consideration. If, on the other hand, it was a simple undertaking to become liable for the debt of another, the agreement would be void under the statute of frauds : Wilson v. Martin, 74 Pa. 159.

In this case it appears that McDaniel held the note of A. L. Demingyfor one hundred dollars payable at fifteen months. The note was under seal and contained a confession of judgment with the usual waivers of stay of execution, right of inquisition and exemption. It was a non-negotiable note. McDaniel offered this note to the plaintiff in exchange for a horse, and was told that it would be accepted on condition that he, McDaniel, would agree to become responsible for its payment. This he agreed to do, at the same time writing his name across the back of the note. The horse was then delivered, and the note wpth McDaniel’s name upon the back of it passed into the hands of the plaintiff. Not long after the plaintiff offered the same note to Frasier, in exchange for another horse, who agreed to accept it on the same condition that he had imposed on McDaniel, viz., that the plaintiff would engage to see the note paid. This he did, and wrote his name also on the back of the note, and delivered it to Frasier, who wrote a guaranty of payment over his name. About the same time a similar guaranty was written over the name of McDaniel, but by whose direction this was done does not appear clearly in the testimony.

Deming did not pay the note when it fell due, and Frasier called upon the plaintiff to make good his guaranty. He accordingly paid it and it was returned to him by Frasier. He then called on the defendant for payment in accordance with his agreement, and upon his refusal brought this suit.

Two lines of defence were taken at the trial; first, that as a contract of guaranty appeared above the defendant’s name, he was not liable until the maker had been pursued without success ; and next, that time had been given to the maker by Frasier during which the maker had become insolvent,’ in consequence of which the defendant was released from his undertaking whether it was to be liable as a guarantor or a surety. The plaintiff replies that he did not write, and does not sue upon, the guaranty that appears above the defendant’s name, but upon the agreement actually made when he accepted the note in payment for his horse, which was a contract of surety-ship. The question thus raised was over the terms of the contract under which the plaintiff parted with his horse. This was a question for the jury, which was properly submitted to them, and which they have found for the plaintiff.

The plaintiff was entitled to a verdict, therefore, unless the other line of defence was in the way. But no contract for an extension of the time for payment of the note by the maker was shown. It is not even alleged that any definite time for payment, after the maturity of the note, was agreed upon, or any consideration for an extension paid or promised. The evidence shows that Deming tried to secure the debt by getting some responsible person to become his surety to Frasier therefor, and that pending this effort Frasier waited several days before calling upon the plaintiff to make good his undertaking. He was under no obligation to do so. He could have proceeded against Deming at any time. Mere delay under such circumstances will not discharge a surety. To accomplish such a result the delay must be in pursuance of a valid agreement to extend the time of payment: Henderson v. Ardery, 36 Pa. 449; Boschert v. Brown, 72 Pa. 372. The same rule applies to a guarantor: Campell v. Baker, 46 Pa. 243. The contract for time must be for a definite period, and upon a sufficient consideration, so that the hands of the creditor are tied : Brubaker v. Okeson, 36 Pa. 519; Hagey v. Hill, 75 Pa. 108.

The errors in the answers to the written points were in the defendant’s favor and he cannot complain of them. The jury were told that the plaintiff could recover if they found the defendant’s contract was that of a surety, unless he had been discharged by a valid contract for further time made with the maker ; but that he could not recover if the defendant was a guarantor, because of the ten days delay while waiting the result of Deming’s effort to secure the debt. This was more favorable to the appellant than he had a right to ask.

The same thing must be said of the answer to the defendant’s fourth point. The plaintiff might have complained of it, but the defendant cannot. We find nothing on this record that requires us to sustain this appeal, and the judgment is accordingly affirmed.