Clanin v. Esterly Harvesting-Mach. Co.

• Citation: 21 N.E. 35, 118 Ind. 372
• Case Date: April 23, 1889
• Court: Supreme Court of Indiana

118 Ind. 372
21 N.E. 35

Clanin
v.
Esterly Harvesting-Machine Co. et al.

Supreme Court of Indiana.

April 23, 1889.

Appeal from circuit court, Grant county; William H. Carroll, Judge.

Action by the Esterly Harvesting-Machine Company and others against Reuben Clanin. Judgment was given for plaintiffs, and defendant appeals.

George W. Harvey, for appellant. Wm. Bosson and W. H. Charles, for appellees.

Mitchell, J.

Reuben Clanin executed his promissory note calling for the payment of $248.54 in 12 months after date, to Samuel Clanin, with 8 per cent. interest. The note was in the ordinary form, except that it contained on its face the following stipulation, viz.: “This note is given to secure the payment of the Universalist Church debt.” The payee afterwards assigned the note to the Esterly Harvesting Company, and the latter brought this suit, alleging the execution and assignment of the note, and that it remained due and wholly unpaid. It is contended, in effect, that the stipulation above set out made the instrument a contract of guaranty, and that the defendant, as guarantor, was not liable until it appeared that the principal debtor had made default. Hence, the argument proceeds, the complaint was demurrable because it contained no averment that the Universalist Church debt had not been paid. This position is not tenable. A guaranty is an independent contract by which the guarantor undertakes in writing, upon a sufficient consideration, to be answerable for the debt, or for the performance of some duty, in case of the failure of some other person, who is primarily liable to pay or perform. Ward v. Wilson, 100 Ind. 52;La Rose v. Bank, 102 Ind. 332, 1 N. E. Rep. 805, and cases cited. The instrument sued on is a written promise by a person

[21 N.E. 36]

named to pay a certain sum of money at a future time, absolutely and without condition, to a payee named, and it has hence all the essential qualities of a promissory note. The recital in the face of the note that it was given to secure the payment of the Universalist Church debt does not render the obligation collateral or conditional. This relates simply to the consideration upon which the note was executed. “It is no objection to a bill or note that it states the transaction out of which it arose, or the consideration upon which it was given.” 1 Pars. Notes & B. 44; Haussoullier v. Hartsinck, 7 Term R. 733; Wells v. Brigham, 6 Cush. 6. The demurrer to the complaint was properly overruled. The answers...