Marberger et al. v. Pott

• Citation: 16 Pa. 9
• Parties: Marberger et al. <I>versus</I> Pott.
• Decision Date: 21 April 1851
• Court: Pennsylvania Supreme Court

Page 9

16 Pa. 9

Marberger et al. versus Pott.

Supreme Court of Pennsylvania.

April 21, 1851.

ERROR to the Common Pleas of Schuylkill county.

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Hughes, for Marberger and Albright, plaintiffs in error, contended that the undertaking of Pott was absolute and unconditional. He agreed to become security for the amount, "until satisfactorily paid by Will'm Audenried." The leading rule of interpretation, in such cases as this, is the intention of the parties.

When one endorsed, without date, upon a note, "I will see the within paid," signing it, the presumption is that it was done at the date of the note and as part of one transaction; consequently he is liable as an original promisor: Amsbaugh v. Gearhart, 1 Jones 482; see also White v. Howland, 9 Mass. 314.

A promissory note is made by A for a sum of money, payable to B on a day certain; C writes underneath, "I acknowledge myself holden as security for the payment of the amount of the above note. Witness my hand, C." In an action against C on this note, it was held to be a joint and several promise: Hunt v. Adams, 5 Mass. 358, and Same v. Same, 6 Mass. 522. See also Snevily v. Johnston, 1 W. & Ser. 309; Allen v. Rightmire, 20 Johns. Rep. 365; Leonard v. Sweetzer, 12 Ohio Rep. 1.

If Pott were a surety, and not a technical guarantor, then the forbearance of plaintiffs to sue until August, 1845, did not discharge him: see Dehuff v. Turbutt, 3 Yeates 157; Cope v. Smith, 8 Ser. & R. 112; U. States v. Simpson, 3 Pa. Rep. 439.

Loeser, for defendant, contended that the words of the engagement show that it was the intention of the parties that Audenried was to be looked to for the money in the first instance. That Pott's undertaking was that Audenried shall be of ability to pay when the bill became payable.

That Pott was not suable when the note became due.

That Pott was not suable immediately after the note became due: 14 Wendell 231. That Audenried was then able to pay.

That the charge was correct, he referred to Story on Pro. Notes, sec. 460, 479-80; 7 Peters 113; 9 Ser. & R. 198; 4 Watts 448; 3 Pa. Rep. 18; 2 Watts 128; 1 Barr 501; 1 Jones 460.

The opinion of the court was delivered April 21, by COULTER, J.

A surety is not discharged by mere forbearance to sue. It is necessary that he should do some act to warn the holder of the instrument and put him on his guard. Such as giving him notice to proceed against the principal. Nothing of that kind is pretended here. The only feasible ground on which Pott can stand is that he was a technical guarantor and not a surety. The rule on that subject is that the intent of the parties, as collected from the language of the instrument, and the attending circumstances of the execution, furnish the true test and guide of interpretation as to the character of the obligation. The language of endorsement seems to be plain enough: "I hereby acknowledge to be security for the within amount of $500, until satisfactorily paid by Wm. Audenried." The word security has an established and well-known meaning in the minds of most people, and indicates an obligation to stand for the sum absolutely, unless...