Emerson v. C. Aultman & Co.

Miller, J., delivered the opinion of the Court. In this case an action of assumpsit was brought by the appellee against the appellant on the 1th of September, 1881. The declaration contains the common counts, and also a special count charging the defendant in the usual form as endorser of a promissory note dated the 1st of July, 1881, for $250, drawn by George S. Powell as maker, in favor of the plaintiff as payee, and payable on or before the 1st of January, 1883. The note is as follows: “$250.00.

Denton, Maryland, July 1st, 1881. “On or before the first day of January, 1883, for value received in one Buckeye Self-Binder 6 ft., Ro.— I the undersigned of Caroline County, State of Maryland, promise to pay to the order of C. Aultman & Co., (an incorporated company under the general laws of the State of Ohio), of Canton, Ohio, two hundred and fifty dollars, payable at the office of Adams Express Company, at Ridgely, Md., with interest at six per cent, per annum, from date until paid. Presentment for payment and protest ‘ waived.' “George S. Powell.” ¹³⁴ The defendant, Emerson, witnessed PowelPs signature to this note, and on the 9th of November, 1881, wrote upon the back of it and signed the following obligation: “For value received I hereby guarantee the. payment of the within note at maturity, and any renewal of the same, and hereby waive protest, demand, and notice of demand and non-payment, and suit against the maker, and consent that the payment of this note may be extended from time to time, without affecting my liability thereon.” “Dated this 9th day of November, 1881.” “William R. Emerson.” The case was tried upon issues joined on the pleas of never indebted, and never promised as alleged, and upon the usual replication to the jilea of limitations. The principal question raised by the exceptions is can this obligation 'be offered in evidence against the defendant under this declaration; and this depends upon the character and effect of the obligation itself. The law is no doubt well settled that in case of an ordinary and usual guaranty, as where one contracts in writing, to be answerable for goods sold -to a third party, or where in like manner one engages to pay a note in case the maker fails to pay the same, the contract of guaranty must be declared on specially, and it cannot be given in evidence under the common counts in assumpsit.

Mines vs. Sculthorpe, 2 Camp., 215. The form of such a declaration is set out in 2 Chitty's Pl., (17th Ed)., 138, and in 1 Harr. Ent., 388. The reason for this is that in such cases it is necessary to aver and set out the conditions upon which, according to the terms of his contract, the liability of the guarantor arises.

But the obligation now before us is a peculiar one, and differs widely from that of an ordinary guaranty. ¹³⁵ By it the defendant not only guarantees the payment of the note at maturity, hut in like manner guarantees the payment of any renewal of the same. But more than this, he waives not only protest of the note, but demand, and notice of demand and non-payment by the maker, and suit against him, and consents that the payment of the note may be extended from time to time without, affecting his liability thereon. Prom this it seems to us plain that lie has waived compliance with every condition the non-observance of which bythe payee of the note would, in an ordinary case, release a guarantor or surety from the obligation of his contract. In effect he tells the payee I will pay this note at maturity, and any renewal of the same you may choose to make.

You need not protest it nor make demand of the maker, nor give me notice of such demand if made, or of his neglect or refusal to pay. Yon need not sue him, and you may extend the time