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below, without going here into unnecessary particulars, was substantially, that the note was given to L. N. Sprague, agent of the Jamaica Leather Company, (to whose order it was made payable), without consideration, and merely for the accommodation of said Leather Company, upon the assurance of Sprague that the note would be taken care of and the defendant protected; and that the bank, the endorsee and plaintiff below, received it with full notice. of these facts.

The testimony of the defendant himself, and perhaps some other testimony in the cause, tended to show, that the note was given for the purpose above stated, and without consideration, and with the assurance of Sprague above stated.

But the defendant's own testimony further tended to show that the note was given for the express purpose, and with the full understanding that it was to be negotiated to the bank to enable the Leather Company to raise money upon it. It was also clearly shown by other evidence that the bank did discount the note endorsed in blank by Sprague, as agent, and paid the money for it; and there was no evidence of a contrary tendency.

We think it, therefore, wholly immaterial whether the bank had notice, or not, of the circumstances under which, and the purpose for which it was given, and of the other facts relied upon in the defense. Had the directors of the bank, knowing the nature of the previous transactions between defendant and the Leather Company, been present and heard and known the whole arrangement between Sprague and the defendant, when the note was given, the bank would still be entitled to recover. See Charles v. Marsden, 1 Taunt. 224; Smith v. Knox, 3 Esp. 46; Thompson v. Shepherd, 12 Met. 311; Brown v. Mott, 7 Johns. 361; Lord v. Ocean Bank, 20 Penn. St. 384; Grant v. Ellicott, 7 Wend. 227; Renwick v. Williams, 2 Md. 356; Molson v. Hawley, 1 Blatch. 409; Caruthers v. West, 11 Q. B. 143.

The want of consideration, and the assurance of Sprague that the note would be taken care of, do not affect the right of the bank as endorsee, though taking it with notice. Mere accommodation paper is generally, at least, without consideration, and such assurances, express or implied, are always given or relied upon, when such accommodation paper is given. Such facts might constitute a good defense as against the party for whose accommodation it is given; but to allow them to defeat a recovery by an endorsee who advances money upon it-when that is the purpose for which it is given-would defeat the very purpose for which such paper is made, and render the transaction absurd.

As between the defendant and the endorsee, the defendant took the risk of Sprague's assurances being made good, and his remedy is upon him or the party he represented.

These conclusions render it unnecessary to notice the defendant's request to charge with reference to the want of consideration, and the question of notice, or the charges given upon these points.

The Circuit Court was right in holding that there was no evidence tending to show that the Leather Company had any interest in the money sought to be recovered in this suit.

A copy of the note with the endorsement, accompanied the declaration, and the note and endorsement were read in evidence without objection, and no evidence was given tending to disprove the endorsement. The Court was therefore right in refusing to charge that it was necessary to prove the endorsement in any other way.

We see no error in the record, and the judgment must be affirmed, with costs.

The other justices concurred.

Whittier v. Eager (1861), 1 Allen (Mass.) 499.

Contract by the indorsee against the maker of a promissory note. Answer, that the note was an accommodation note, and that there was no consideration for the making or indorsement thereof.

At the trial in the superior court, the defendant testified that he gave the note in exchange for a note of S. W. Bean & Co., the payees, and that it was for their accommodation; that, at the time the note was signed, he proposed that they should give him their receipt, but they replied that it would be as well to give a note, which was done, and that he still held it. Upon this evidence, Brigham, J., ruled that the note declared on was not an accommodation note. The defendant's counsel then offered evidence that there was no consideration for the indorsement of the note in suit to the plaintiff, and that the plaintiff had notice of the facts above stated; and that the note had been paid to the plaintiff by some person, but by whom he was not instructed. The court rejected the evidence, and directed the jury to find a verdict for the plaintiff, which they did; and the defendant alleged exceptions. W. L. Brown, for the defendant. H. C. Hutchins, for the plaintiff.

BIGELOW, C. J.-The defendant by his own testimony proved that the note in suit was given for a valid consideration. Nothing is better settled than that a promissory note given by the maker in exchange for a note given to him by the payee is for a good consideration, and is in nc proper sense an accommodation note, although made for the mutual convenience of the parties. (Higginson v. Gray, 6 Met. 212). Being a valid note on which the defendant was liable, it was wholly immaterial whether the plaintiff, as indorsee, took it for value.

If the evidence of payment was admissible, for the reason that it was not objected to at the trial on the ground that it had not been duly pleaded in the defendant's answer, it is very clear that the proof offered wholly failed to substantiate the fact. Evidence that some one had paid the amount of the note to the plaintiff did not necessarily show that the note was paid, so as to exonerate the defendant from his liability thereon. It was equally consistent with the fact of the purchase of the note by the person who paid the money, as with its payment, and the burden of proof to establish payment being on the defendant, it failed to sustain the allegations; a fortiori is this true, where it appears, as in the case at bar, that the defendant has not instructed his counsel that the money was paid either by himself or on his behalf. We therefore cannot see that the defendant was in any way aggrieved by the rulings of the court at the trial.

Exceptions overruled.

Am. Nat. Bank v. Junk Bros. (See page 420.)

SECTION XIII-CONTRACT OF SURETY OR GUARANTOR. §65.

Bickford v. Gibbs et al. (1851), 8 Cush. 154.

This was an action of assumpsit on the following note:

"July 26th, 1845. $100. For value received, I promise to pay on demand to Joseph Bickford, or order, one hundred dollars with interest. GEORGE MAY."

On the back of the note was the following agreement, signed by the defendants: "We guaranty the payment of the within, waiving demand and notice."

The writ was dated the 23d of May, 1849; and contained the money counts only. At the trial in the court of common pleas,

before Byington, J., the plaintiff put in evidence the foregoing note and agreement, and there rested his case. And the presiding judge submitted the case to the jury, with directions, if they found for the plaintiff, to cast interest on the note. The jury returned a verdict for the plaintiff; and the defendants alleged exceptions to the instructions of the judge.

This case was argued and decided at the last October term.

R. B. Caverly, for the defendants.

B. F. Butler, for the plaintiff.

SHAW, C. J.-Assumpsit to recover the amount of a note given by one May, and guaranteed by the defendants.

An exception is now taken, that this guaranty should have been specially declared on. No such exception was taken at the trial; had it been, an amendment might have been made; the objection comes too late.

The exception is also taken, that as the guaranty was a contract collateral to the note, a distinct consideration should be proved. There would be force in this objection, had the guaranty been made after the note had been made, delivered and received as a complete contract. But when the guaranty is made on the note before its delivery by the maker to the promisee, it must be deemed to be done for the benefit of the maker, to add to the strength of the note and to induce the promisce to take it and advance his money on it; and no other consideration is necessary than the credit thus given to the maker. And the guaranty being without date, and there being no direct proof of any time at which it was made, we think the court were right in leaving it to the jury, to find that the guaranty was simultaneous with the note itself. (Benthall v. Judkins, 13 Met. 265).

Supposing, then, that the defendants were regularly bound as guarantors, and thereby assumed an obligation somewhat differing from that of either sureties or indorsers, what was that obligation? This question has been much discussed, especially since the leading case of Oxford Bank v. Haynes, 8 Pick, 423. The principle to be deduced from that case, and the Pennsylvania case of Gibbs v. Cannon, 9 S. & R. 202, there cited with approbation and relied on, is this: That in order to maintain an action against a guarantor, a demand of payment must be made in a reasonable time of the principal, and notice of non-payment given to the guarantor; and if in consequence of want of such notice, the guarantor suffers loss, he is exonerated. (Dole v. Young, 24 Pick. 250). The same prompt demand and notice, as are required

to charge an indorser, are not necessary; and if the circumstances of parties remain the same, and the guarantor suffers no loss by delay, demand and notice at any time before action brought, will be sufficient. (Babcock v. Bryant, 12 Pick. 133). Such being the obligation of the defendants, as guarantors, they would not be liable by the general law, without proof of demand and notice. But they have expressly agreed to waive demand and notice, and conventio legem vincit. The effect of that waiver is, to put the plaintiff in the same situation as if he had proved that he seasonably demanded the money of the promisor, who did not pay it, and gave reasonable notice thereof to the defendants. In the absence of all proof on the part of the defendants, that they have suffered any loss by the laches of the plaintiff, the court are of opinion that this proof would entitle the plaintiff to recover. Exceptions overruled.

Roberts v. Hawkins (1888), 70 Mich. 566.

Error to superior court of Grand Rapids. (BURLINGAME, J.) Assumpsit. Defendant brings error. Affirmed. The facts are stated in the opinion.

Norris & Norris, for appellant.

J. C. Fitz Gerald (Charles Chandler, of counsel), for plaintiff. LONG, J.-January 12, 1884, one Lyman D. Follett made his promissory note as follows:

"$1,000.

GRAND RAPIDS, MICH., January 12, 1884.

"One year after date, I promise to pay to the order of Helen M. Roberts one thousand dollars, with interest at eight per cent. per annum. Value received.

"LYMAN D. FOLLETT."

And defendant signed an indorsement on the back thereof, as follows:

"For value received, I hereby guarantee the payment of the within note. L. E. HAWKINS."

On the delivery of this note to plaintiff, she paid Follett $1,000. January 8, 1885, seven days before this note became due, Follett paid one year's interest; and neither at that time, nor at the maturity of the note, was the same presented to Follett or defendant for payment. No notice of non-payment was given

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