Ketchell v. Burns

By the Court,

Regarding the legal effect given to this form of guaranty by the decisions in this court, the plaintiff" below was entitled to recover. It amounts to an absolute promise to pay the note if the maker fails at the day. 20 Johns. R. 365. 19 Wendell, 202. It is a new note for the payment of the money, upon full consideration, and as it is made payable to Spencer or bearer, it is negotiable. See also 17 Wendell, 214, and 6 Conn. R. 315.

It was supposed that this case should be governed by Lamourieux v. Hewitt, 5 Wendell, 307; but there the guaranty did not import an absolute undertaking to pay. The endorsement was, I warrant the collection of the within note, for value received; importing, simply a special agreement, that if the money could not be collected of the maker, the defendant would pay. Here the promise to pay is absolute and unconditional to Spencer or bearer—in terms a full negotiable note.

It is agreed if the endorsement had been in blank by Burns, while the note was in the hands of the original payee, the latter might have filled it *457up and recovered as on a promissory note payable to himself. 21 Wendell, 590. Here the defendant has done the same and more, for he has added words of negotiability.

Judgment reversed; venire de novo by Cayuga common pleas; costs to abide the event.