Fessenden v. Summers

Boss, J.: The action is upon a promissorymote signed by the defendant Summers, made payable to the plaintiff or order, and indorsed in blank by the defendant Thompson before delivery to the payee. Thompson indorsed for the purpose of adding credit to the note, and plaintiff made the loan upon the strength of the indorsement. The note not having been paid, the plaintiff, after its maturity, commenced the present action against Summers and Thompson to recover the amount due upon it. Summers suffered default, but Thompson appeared and demurred to the complaint. The demurrer was overruled, and Thompson answered. A trial being had, the Court below found the facts to be as stated.

In the complaint, however, there is no averment, nor is there any finding, that notice was given to Thompson of the non-payment by Summers of the note when it became due; and this constitutes the ground of the appeal, which is taken by Thompson from the judgment.

Whether or not he was entitled to notice depends upon the nature of the obligation assumed by him.

The decisions of this Court upon the question, prior to the adoption of the Codes, as well as of the Courts of other States, are numerous and conflicting. Thus in Ford v. Hendricks, 34 Cal. 673, where the note in suit was signed by Hendricks and indorsed by Beed before its delivery to the payee, who was the plaintiff in the action, the Court said: “As to the relation of Beed—whether it be that of maker, indorser, or guarantor—there is much conflict of authority; but under the settled rule in this State, he must be regarded as a guarantor.” In support of this, the Court cited the cases of Riggs v. Waldo, [4862] Cal. 485; Pierce v. Kennedy, 5 id. 138; Brady v. Reynolds, 13 id. 31; Geiger v. Clark, id. 579.

In the subsequent ease of Jones v. Goodwin, 39 Cal. 493, where the defendant Wilcox had signed his name in blank upon the back of the note in suit before its delivery, the Court said: “A great diversity of opinion exists as to the nature of the liability of one not being a party who indorses his name in blank upon a note before delivery. In England he is held to be a guarantor, and his contract is, that the maker of a note will pay at maturity, or if he does not, the guarantor will. No demand or notice is considered necessary as a condition precedent to fixing the liability of the guarantor, or to the commencement of the action; but a failure to make demand and give notice, together with proof of injury, is pro tanto a defense.