Woodsmall v. Meyer

Opinion by

Judge Hardin :

The note in controversy is made payable to the appellee and first endorsed by him; the subsequent endorsement'of the appellant did not make him a guarantor of the drawers of the note to the appellee, but operated only to bind him with the appellee and the obligors to the bank, as other holders to whom the paper might, before its maturity, be passed; but as between the appellee and the appellant, the import of the endorsement is to bind the latter as surety for the former, and not as á surety or guarantor to him. The averment of the appellee that appellant’s endorsement constituted or was a guaranty to him is expressly contradicted by the answer; and it was not sustained by any evidence. The court should, therefore, have treated the parties as standing in the relative positions legally imparted by the paper, and dismissed the action as was in effect done by the justice of the peace.

Wherefore the judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion, further pleadings being allowed to both parties, if appearing to be necessary in furtherance of justice.