Lyons v. Divelbis
| Decision Date | 01 October 1853 |
| Citation | 22 Pa. 185 |
| Parties | Lyons versus Divelbis. |
| Court | Pennsylvania Supreme Court |
Patterson, for plaintiff in error.—It was said that if this were the case of an endorsement, the endorsee could not recover as it was not shown that the note was presented to the drawer for payment and notice given of its dishonor. But in the case of a guaranty, the rule is not equally strict, and when there has been no presentment or notice of dishonor, the liability of the guarantor will depend upon the question as to whether the want of notice occasioned him loss: Story on Pro. Notes, sec. 460; 1 Jones 460. The liability of a guarantor depends upon the evidence in the case. The Court charged that in order to recover, it was necessary to show only that an attempt had been made to collect the note, or that by reason of the insolvency of the maker, it could not be collected. But it was contended that in this case the testimony was, that the endorsee was to take iron for the note, and that it was to have been presented on the next day, and, if not honored, the note was to be returned. Even though there had been no agreement to return the note, if there had not been due diligence to secure the claim, and give notice if it were not met, and by this means the claim was lost, the defendant was not liable even if he were a guarantor. It was said that in this case the defendant was not a guarantor, as he had not entered into a covenant to be surety for the payment of the claim.
J. B. and A. Howell, for defendant in error.—It was contended that this was not a mere endorsement, nor simply an assignment of the note; but that the defendant, when he assigned, agreed to guaranty its payment, and that this appeared from the testimony in the case. The contract of endorsement may be converted by parol evidence into an absolute and unconditional engagement to pay; 6 Harris 426, Patterson v. Todd & Lemon; and the contract of assignment may, in the same way, be shown to be an agreement to guaranty the payment of the note. A guarantor is bound to inquire and see that the note is paid. It is not necessary for the holder to give him notice of its non-payment: 9 Ser. & R. 199; 4 Watts 418; 1 Barr 501. It was contended that the jury had determined from the testimony and from all the facts of the case the liability of the defendant, and their decision should not be reviewed in this Court. It was further said that the charge to the jury is not here — that on the paper-book is what was said by the Court in entering judgment. It was added: It was said that it was on the decision of the Court below upon such reserved question that this Court have to pass, and upon no other.
Every endorsement of a promissory note includes in it an assignment, but an assignment is not necessarily an endorsement. The statute of 3 & 4 Anne, chapter ix., distinguishes between the two methods of transfer, when it authorizes the holder, whether by endorsement or assignment, to bring an action in his own name against the maker, and endorser. No action is given by the statute against the assignor. An endorsement is an...
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Daniel v. Yearick
...of the right, title, and interest, of an assignor in a bond has generally been so construed. Hailey v. Falconer, 32 Ala. 536; Lyons v. DiVelbis, 22 Pa. 185, 186; Aniba v. Yeomans, 39 Mich. 171, 173. It may not be amiss to say, however, that even if appellee were subject to the liabilities o......
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Daniel v. Yearick
...of the right, title, and interest, of an assignor in a bond has generally been so construed. Hailey Falconer, 32 Ala. 536; Lyons Divelbis, 22 Pa. 185, 186; Aniba Yeomans, 39 Mich. 171, 9 It may not be amiss to say, however, that even if appellee were subject to the liabilities of the ordina......
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Sanford v. Weller
...they represent, but that they are what they purport to be; in other words, he warrants the genuineness of the claim upon them. Lyons v. Divelbis, 22 Pa. 185. Every obligee or holder of an obligation who assigns it to another, especially if he does so for a valuable consideration, impliedly,......
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Haas v. Commerce Trust Co.
...assignment in writing to the plaintiff and the proof of a regular indorsement to him. Wells v. Cody, 112 Ala. 278, 20 So. 381; Lyons v. Divelbis, 22 Pa. 185, 189. 2. indorsements on the notes, coupled with the plaintiff's possession of them at the time of suit, prima facie showed title and ......