Clarke v. Smith & Parke
Before: Heydeneeldt
Synopsis
Appeal from the Tenth Judicial District, County of Tuba.
This action was brought for the recovery of a promissory note for §2000, drawn by E. M. Smith, one of the defendants, and made payable ninety days after date to the plaintiffs; which note was indorsed by the other defendant Parke; the complaint avers that Parke indorsed the same before it was delivered to the plaintiff ; and that when it became due, it was duly presented to the maker and payment demanded, which was refused; of which demand and refusal due notice was given to Parke, the said, indorser.
The defendants were duly summoned, who made default; and judgment was entered thereupon; from which Parke, one of the defendants, the (indorser) appealed.
Heydeneeldt, Justice, delivered the opinion of the Court, with whom Murray, Chief Justice, concurred.
The note sued on was given by Smith, one of the defendants, payable to the plaintiff; and before it was delivered to the plaintiff, it was indorsed by the defendant Parke.
These facts are set out in the declaration, and the judgment by default admits its averments to be true..
It is very evident, that Parke was a guarantor of the note; and although, prima facie, he would be presumed to be an accommodation indorser for the payee, and therefore not liable to him; yet upon proof that such was not the intent with which he acted, but that his design was to be a surety or guarantor for the maker, his liability to the payee is beyond question. The default, upon proper averments, dispenses with this proof; and the judgment is consequently affirmed with costs.
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