Baker v. Robinson
| Decision Date | 31 January 1869 |
| Citation | 63 N.C. 191 |
| Court | North Carolina Supreme Court |
| Parties | GEORGE B. BAKER v. BENJAMIN ROBINSON, HENRY L. MYROVER and THOS. S. LUTTERLOH. |
Endorsements by third persons of a note payable by A to B,--if made at the time of its execution, bind them, according to the intention of the parties, either as joint principals or as sureties.
ASSUMPSIT, tried before Buxton, J., at Fall Term 1868 of the Superior Court of CUMBERLAND.
The suit was brought upon four promissory notes made by Robinson, and payable to Baker. At the time that they were delivered to Baker they had upon them the endorsement of Myrover and Lutterloh, and it was in evidence that they intended thereby to become sureties to Robinson.
No demand was made upon Robinson before bringing this suit.
For Myrover and Lutterloh it was insisted, below, that they were mere guarantors, and therefore, that a previous demand upon Robinson, with notice to them of his failure to pay, was necessary.
His Honor was of opinion that the peculiar character of the guaranty in question, rendered such previous demand unnecessary.
Verdict, for the plaintiff ; Rule for a new trial; Rule discharged; Judgment, and appeal.
B. Fuller, for the appellants , cited: Nichols v. Pool, 2 Ire. 23; Johnson v. Hooker, Ib. 29; Yancey v. Littlejohn, 2 Hawks, 525; Johnson v. McGinn, 4 Dev., 277; Story, Prom. Notes 142; Topping v. Blount, 11 Ire. 62; Farrow v. Respass, Ib. 170.
R. H. Battle, contra . The present, as regards Myrover and Lutterloh is a contract of suretyship; 1 Par. Con. 206, and n.; Ray v. Simpson, 22 How. U. S. 341. If Myrover and Lutterloh be guarantors, they must show themselves damaged by the alleged laches of plaintiff, or he may still recover. Farrow v. Respass, 11 Ire. 170.
The subject of this suit is four notes of hand, each in the following words and figures, to wit:
+--------------------------------------------+
¦“$362 50.¦WILMINGTON, N. C., Nov. 9th, 1866.¦
+--------------------------------------------+
Ninety days after date I promise to pay George B. Baker or bearer, three hundred and sixty dollars and fifty cents, for value received, with interest from date at 8 per cent.
+--------------------------+
¦(Signed)¦BENJ. ROBINSON.” ¦
+--------------------------+
On the back of each, were endorsed in blank, the names of Henry L. Myrover and Thomas S. Lutterloh.
In interpreting contracts, we should endeavor to carry out the intention of the parties. It appears that the defendants, Myrover and Lutterloh, put their names upon the back of these notes at the time they were made, and before they were delivered to the plaintiff, and that their purpose was to give the weight of their names as sureties for the maker, and for his accommodation. “If any one, not the payee of a negotiable note, or in the case of a note not negotiable if any party, writes his name...
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... ... combating the presumption, parol evidence is inadmissible, ... particularly against a bona fide holder for value before ... maturity. (Robinson v. Bartlett, 11 Minn. 410; ... Cayuga County National Bank v. Dunkin, 29 Mo.App ... 442; Melton v. Brown, 6 So. Rep. [Fla.] 211; ... Rothschild ... 506, 13 ... A. 331; Bright v. Carpenter, 9 Ohio 139; Derry ... Bank v. Baldwin, 41 N.H. 434; Perkins v ... Barstow, 6 R.I. 505; Baker v. Robinson, 63 N.C ... 191; Hoffman v. Moore, 82 N.C. 313; Brown v ... Butler, 99 Mass. 179; Way v. Butterworth, 108 ... Mass. 509.) Many other ... ...
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