Tatum v. Bonner

Mr. Justice Fisher

delivered the opinion of the court.

This is a writ of error to the judgment of the circuit court of Marshall county.

The suit was brought against the defendant below-as administrator of the estate of Samuel D. Martin, upon a special assignment made by the deceased of a promissory note, made by E. F. Buckner. The assignment is in these words, namely: “ I assign this note to Cook & Holland, and indorse the prompt payment of it. March 16, 1848. S. D. Martin.” The counsel for the plaintiffs below asked ■ the court to give the following instruction to the jury, “ that the words ‘ I assign this note to Cook & Holland, and. indorse the prompt payment of it,’ which were used by the defendant’s intestate, in the assignment of the note sued on, constitute in law a guaranty of said note by said assignor, and demand and notice were not necessary to fix the liability of the said decedent thereon; ” which instruction the court refused to give, but in effect instructed the jury that said assignment imposed upon the intestate no other obligation than that of an ordinary indorser, and that to charge him, demand and notice were necessary at .the maturity of the note. The jury following, as they were bound to do, this latter instruction, found a verdict for the defendant, which the court, on a motion for new trial, refused to set aside.

It will at once be perceived, that the question for decision is, whether the court below erred in refusing to give the instruction asked by the plaintiff’s counsel.

In the construction of contracts, the court must endeavor to ascertain the intention of the parties, from the language which they themselves have employed, and this language may be taken either in a technical or popular sense, as it will best serve to unfold the terms of the contract, as actually assented to by the parties. Martin, by merely writing his name on the back of the note, assumed the obligation of an ordinary indorser. This obligation was only conditional, dependent upon the fact of demand of payment from the maker, and notice of non-payment at the proper time.

The special assignment must have been intended for one of two purposes, either to restrict or to enlarge the liability of an ordinary indorser. It is manifest that it was not designed for the former purpose; and the latter being its object, the question is, to what extent the intestate intended, by the language employed, to assume a liability beyond that of an ordinary indorser ? The word “ indorse,” when used in contracts, is generally understood in a technical sense; but it may be taken according to its popular and modern meaning, when necessary to carry into effect the obvious intention of the contracting parties. What did Martin mean, when he said that he indorsed “the prompt payment of the note?” It amounted, to say the least, according to the popular meaning of the word “ indorse,” to a positive and unqualified assertion, that the promise of Buckner to pay on a particular day, would be promptly complied with on his part. The word must be construed with reference to the words “ prompt payment,” in the same clause of the sentence, and when thus interpreted it is obvious that .the word “indorse” was used in its broadest popular sense, which is sometimes synonymous with the word “ guaranty; ” and this is evidently what was intended.

It is conceded that if a guaranty was intended, and the contract is so construed that demand and notice were not necessary to charge the intestate, the court therefore erred in refusing to give the plaintiff’s instruction to the jury.

Judgment reversed, new trial granted, and cause remanded.