Clanin v. Esterly Harvesting Machine Co.
| Decision Date | 23 April 1889 |
| Docket Number | 13,238 |
| Citation | 21 N.E. 35,118 Ind. 372 |
| Parties | Clanin v. Esterly Harvesting Machine Company |
| Court | Indiana Supreme Court |
From the Grant Circuit Court.
The judgment is affirmed, with costs.
G. W Harvey, for appellant.
W. H Charles and W. Bosson, for appellee.
Reuben Clanin executed his promissory note calling for the payment of $ 248.54 in twelve months after date to Samuel Clanin with eight 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; LaRose v. Logansport Nat'l Bank, 102 Ind. 332, 1 N.E. 805, and cases cited.
The instrument sued on is a written promise by a person 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 on 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 for which it was given." 1 Parsons Notes & Bills, 44; Haussoullier v. Hartsinck, 7 T. R. 729; Wells v. Brigham, 6 Cush. 6. The demurrer to the complaint was properly overruled.
The answers present substantially the following facts: At the time the note in suit was executed, the church society therein mentioned, at Mier, in this State, was indebted in the sum of $ 248.54, for the payment of which the appellant with other members of the society, were personally bound. It was agreed that Samuel Clanin, the payee of the note, should advance the money to pay the church debt, and that the appellant and one Milton Abbott should execute their notes to him for the amount. The money was advanced according to the agreement, and the appellant signed the note and delivered it to the payee, who, it is alleged, agreed to see Abbott and procure his signature thereto. It is averred that it was agreed that the appellant was not to be bound unless Abbott's signature was obtained; that...
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