Jackson Bank v. Irons

The reargument starts out with the assumption that the opinion of the court admits that the undertaking on the back of the note is an express guaranty and, as such, a separate and distinct contract from the note and a separate and distinct cause of action, and then on this assumption proceeds to criticise the opinion from that standpoint.

Such an assumption is wholly unwarranted. The ground of demurrer relating to the nature of the undertaking was that it was a guaranty, and the opinion of the court was an argument directly against this contention of the defendants. The court conceded that if the undertaking was to be construed as a guaranty, that the defendants' contentions were not without authority, and perhaps a preponderance of authority for their support, and that it would follow that the signers of the undertaking ought not to have been joined as defendants with the maker of the note, but proceeded to show that the legal effect of the undertaking was to make the signers of it joint makers of the note with the other defendant, instead of guarantors. We were called upon to construe the anomalous writing on the back of the note which, judging from its character, was drawn by some one without professional knowledge, and who apparently did not have any clear notion of the technical meaning of the words "endorse" and "guarantee." The word "endorse," as we showed in the opinion, could not be given its strict technical meaning; and we also pointed out the reasons for thinking that the word "guarantee" was not so used, viz., that all the rights which inhere in the contract of guaranty were waived in the undertaking. We were of the opinion that the parties intended, as between themselves and the holder of the note, to bind themselves absolutely for its payment. Doubtless they supposed that the maker of the note would first be called upon to pay it, but they meant to render themselves liable absolutely in case of his default. This view, moreover, is strengthened by the consideration, not before adverted to, that the undertaking is on the back of the note, which is negotiable, and was apparently intended not merely for the benefit of the payee, but for the holder, whoever he might be. We therefore gave to the writing the construction stated, and we are not convinced by the reargument that we erred in so doing.