Palmer v. Tripp's Administrator

Murray, C. J., delivered the opinion of the Court—Terry, J„, concurring. The record in this case discloses the following state of facts: Mowry W. Smith, being indebted to R. B. Smith, executed his promissory note for the sum, payable on demand. By an arrangement entered into between the parties, it was agreed that Mowry W. Smith should convey certain real estate to Tripp, who, in consideration thereof, was to pay said noto. Some time after the making and delivery of the note, Tripp, at the request of R. B. Smith, the payee, wrote his name upon the back of it, by way of memorandum of said agreement, at the same time acknowledging his liability, and the conveyance which had been made by the payor of the note to meet the same.

The appellants assign two grounds of error : 1. That there is no allegation of presentation of the note to the maker, or notice of non-payment to Tripp. 2. That the Court erred in admitting parol evidence of the deed from Mowry W. Smith to Tripp, the absence of the same not having been satisfactorily accounted for. Neither of these grounds are tenable. The plaintiff does not declare against Tripp as an endorser; he counts upon the original agreement between them, whereby he became primarily and unconditionally liable, and relies upon the endorsement upon the note as a memorandum of said agreement, not as a collateral liability or undertaking, on his part, to pay, in the event that the maker should fail to do so. There was no error in admitting parol testimony of the deed. The plaintiff was not attempting to establish a conveyance of lands from Smith to Tripp, but an agreement, on Tripp’s part, to assume the note, the consideration of which was a conveyance, which Tripp admitted. If the deed had been produced, it is difficult to perceive how it could have affected the liability of the defendant, as he had already acknowledged its sufficiency, and assumed the payment of the note upon the strength of it.

Judgment affirmed.