persons unknown, for a consideration from them received, and as having thereafter come lawfully into plaintiff's possession, and that he is the owner thereof: Hubbard v. N. Y. and Harlem R. R. Co., 14 Abb. Pr. 275. There must be two parties to every promissory note, a maker and a payee; if the payee named is not in esse, there is no note: Wayman v. Terreyson, 4 Nev. Rep. 124. 105. Partnership and Individual Liability.—A complaint would seem to be bad which shows a partnership note as a cause of action against an individual. If there was no real firm, it should have been alleged that the note was signed by A. B. in the name of A. B. & Co. The words "& Co." indicate a firm. The defendant may have been a member of that firm, and yet never have made the note, nor have had any knowledge of its existence. It may have been the objection is not strictly for defect of parties, but that the complaint does not, on its face, show an individual liability on the part of "A. B.": Price v. McClave, 6 Duer, 544; affirming S. C., 5 Id. 670. 106. Plaintiff's Title.-In an allegation on a note payable to a third person, the right of plaintiff should be alleged: Montague v. Reineger, 11 Iowa, 503; Bennett v. Crowell, 7 Minn. 385. And if the answer does not deny the allegation, defendant cannot prove that payee had no capacity to transfer: Robbins v. Richardson, 2 Bosw. 248. 107. Sufficient Allegation.-In an action against one A. B. as the maker, and others as indorsers of a promissory note, the complaint set forth a copy of the note signed A. B. & Co., upon which it alleged the defendants were indebted, etc. The word "signed was prefixed to the name of the makers, and the word "indorsed was prefixed to the names of the indorsers in the copy; but there was no other allegation that the defendants made or indorsed the note, except that it was alleged that the note was “written,” and that it was passed to the plaintiff: Held, on demurrer, that the making and indorsement should be deemed sufficiently alleged: Phelpsv. Ferguson, 9 Abb. Pr. 206; Lee v. Ainslie, 4 Abb. Pr. 463; Bank of Geneva v. Gulick, 8 How. Pr. 51. 108. Transfer-An allegation that a corporation indorsed and transferred and delivered to the plaintiffs the note sued on, sufficiently implies that the transfer was made pursuant to a resolution of the board of directors, if such resolution is necessary. So an allegation, that after the transfer the company became insolvent and was dissolved, is an indirect statement that it was solvent when the transfer was made: Nelson v. Eaton, 15 How. Pr. 305; Taylor v. Corbiere, 8 How. Pr. 385; but see Montague v. King, 37 Miss. (8 George) 441. Yet all necessary allegations should be directly made. No. 246. xxiv. By the Treasurer of an Unincorporated Company, on a Note Payable to the Former Treasurer. [TITLE.] The plaintiff complains, and alleges: I. That the Mountain View Homestead Association is an association consisting of...... persons, in the city of......, in this State. II. That at the time hereinafter mentioned, one A. B. was the treasurer thereof. III. That on the......day of......, 187., the defendant made his promissory note, of which the following is a copy [copy of note]-and thereupon delivered the same to said A. B., as the treasurer of the association, who was duly authorized to receive it on their behalf. IV. That said note was given for the benefit of the association, and that it is the property of the members thereof, and owned by them in common. V. That this plaintiff is now the treasurer of said association, and, as such, is the lawful holder of said note on and for their behalf. VI. That the defendant has not paid the same. [Demand of Judgment.] 109. Homestead Associations.-Such associations, under the Statutes of California, are incorporated pursuant to the statute. Hence the above form is not strictly applicable in this State. [TITLE.] No. 247. XXV. On a Note Payable on a Contingency. The plaintiff complains, and alleges: 187., at the defendant made and delivered to the plaintiff his promissory note, in writing, of which the following is a copy: $300. SHASTA, 1st January, 1869. For value received, I promise to pay to A. B., one year after date, three hundred dollars, in case the proceeds of the newspaper route I have this day bought of him shall exceed the sum of one thousand dollars. C. D. II. That the proceeds of said newspaper route did, before the expiration of said year, exceed the sum of one thousand dollars. III. That no part of the said note has been paid. [Demand of Judgment.] 110. Condition Precedent.-Where a note was made payable on the contingency of the confirmation of a grant of land, the confirmation was a condition precedent to the payment of the note: Sanders v. Whitesides, 10 Cal. 88. Where the complaint on a promissory note shows that, by agreement of the parties, its payment was made conditional upon the payment, by the payee, of a certain debt of the payor, such payment is a condition precedent to plaintiff's right to recover on the note, and must be averred in the complaint to have been made: Rogers v. Cody, 8 Cal. 324. [TITLE.] No. 248. xxvi. On Note Payable in Chattels. The plaintiff complains, and alleges: 187., at the defendant, for value received [or, where the consideration is expressed in the note, for a valuable consideration therein expressed], made and delivered to plaintiff his promissory note, of which the following is a copy: For value received, thirty days after date, I promise to pay A. B. five hundred dollars, in clothing, at the usual market rates; the same to be delivered within two days after the same is selected or demanded by the said A. B.; and on default thereof, I agree to pay the said amount in money. C. D. January 1, 1869. II. That the plaintiff thereafter demanded of defendant the said clothing, but defendant refused to deliver it, or any part thereof to him [or that the plaintiff thereafter performed all the conditions of the same on his part]. III. That no part has been paid. [Demand of Judgment.] 111. Consideration.-Consideration in such complaints may be specially set out: Ward v. Sackrider, 3 Cai. 263. And if so stated, must be proved as laid: Jerome v. Whitney, 7 Johns. 321. It must be averred, when the instrument itself does not import a consideration: Spear v. Downing, 34 Barb. 522. In case the consideration be subject to transfer on demand of payment, the plaintiff must allege a transfer or tender of transfer: Considerant v. Brisbane, 14 How. Pr. 487. 112. Demand. The demand should be made at the place of business of the maker of the note, when the note is payable in chattels: Vance v. Bloomer, 20 Wend. 196; Rice v. Churchill, 2 Den. 145. But if the day of delivery of chattels be defined in the note, as "on or before " a day named, no demand is necessary, unless the holder exercises an election as to choice of goods: Johnson v. Seymour, 19 Ind. 24. The payee of a note of forty dollars, payable on demand, in "hemlock bark, at the going price," in the summer of 1863, requested the maker to have the bark peeled in the course of the summer (the peeling season), and delivered the next winter, which the maker agreed to do. The bark was not delivered: Held, that the demand was appropriate to the note, and that on defendant's failure to furnish the bark the payee could recover on the money counts: Read v. Sturtevant, 40 Vt. 521. 113. Effect of Indorsement.-The indorser of such a note has no right to insist on a previous demand on the maker, but is immediately liable thereon: Seymour v. Van Slyck, 8 Wend. 403; affirmed, sub nom., Stone v. Seymour, 15 Id. 19. 114. Maturity.-It seems such notes are generally due on demand, and a special demand is necessary: Lobdell v. Hopkins, 5 Cow. 516; but see Barns v. Graham, 4 Id. 452. 115. Measure of Damages. Upon such notes, the measure of damages is the sum of money named: Pinney v. Gleason, 5 Wend. 393; Rockwell v. Rockwell, 4 Hill, 164; and see Gilbert v. Danforth, 6 N. Y. (2 Seld.) 585. 116. Non-Payment.-The allegation of non-payment of the money is alone sufficient: Rockwell v. Rockwell, 4 Hill, 164. No. 249. xxvii. On Guaranties—Against Maker and Guarantor of a Promissory [TITLE.] Note. The plaintiff complains, and alleges: I. That on the .. day of .... 187., at the defendant A. B., and C. D. as his security, by their promissory note promised to pay to the order of one E. F., days after date]. dollars, [........ II. That the said E. F. indorsed the same to the plaintiff. III. That on the....... day of........, 187., the same was presented [or state facts excusing presentment] to the said A. B. for payment, but was not paid. IV. That notice thereof was given to the said C. D. [Demand of Judgment.] 117. Certificate of Deposit.—Where the indorsee, on payment to him of the amount, guaranties the genuineness of the signature, which is afterwards found to be a forgery, and the payee recovers from the makers the amount of certificate and costs, the maker may recover from the indorsee and guarantor the costs of the former action: Mills v. Barney, 22 Cal. 240. 118. Demand and Notice.-Where it is agreed "that if the holder should not be able to collect the note from the maker by due course of law, then the guarantor would be responsible without requiring notice," it is a waiver of demand on the maker: Backus v. Shipherd, 11 Wend. 629. A note indorsed "I guarantee the collection of the within note when due," contemporaneous with the signing of the note, constitutes a guaranty, and the party is entitled to legal notice of non-payment before he can be charged on his contract: Reeves v. Howe, 16 Cal. 152. A complaint is insufficient which treats the maker and guarantor of a note as joint makers, and contains no allegation of demand and notice: Lightstone v. Laurencel, 4 Cal. 277. "I assignthe within to K., for value received, and bind myself to pay it prompt y after maturity," indorsed upon a note, is a guaranty, and demand and notice are not necessary to fix the guarantor's liability, on failure of the makers to pay at maturity: Baker v. Kelly, 41 Miss. 696. So, in case of a lease: Voitz v. Harris, 40 Ill. 155. 119 Discharge of Surety.-Mere extension of time to the maker is not sufficient to discharge a surety or indorser, unless it will be such as will suspend the right of action against the maker: Williams v. Covillaud, 10 Cal. 419; Draper v. Romeyn, 18 Barb. 166. The failure of a holder of a note to sue, when requested by the surety, does not in general operate to discharge the liability of the latter: Hartman v. Burlingame, 9 Cal. 557. If the surety desires to protect himself, he must pay the note, and proceed against the principal: Id. 120. Guarantor, who is.-One who puts his name upon a promissory note, out of the usual course of regular negotiability, is a guarantor, whether inscription is in blank or accompanied by the words, "I guarantee," etc.: Riggs v. Waldo, 2 Cal. 485; Chitt. on Cont. 397; 3 Kent's Com. 121. Or, if the indorser accompanies his signature with the words, I hereby waive demand, notice of non-payment, and protest," he is a guarantor: Ford v. Hendricks, 34 Cal. 673; see, also, Brady v. Reynolds, 13 Cal. 31; Story on Prom. Notes, sec. 431; Fell's Law of Guar. & Sur. 1; Hall v. Farmer, 5 Den. 484; Miller v. Gasten, 2 Hill, 191; 2 Wend. 630. 121. Guarantor and Surety.-Where the holder of a note, after its maturity, obtained from a stranger a guaranty of its payment within sixty days from date of guaranty, there is no presumption of law that the guaranty was taken for the benefit of the maker, or that it extended to him the time of payment: Williams v. Covillaud, 10 Cal. 419. 122. Joint Liability.-Each one who writes his name upon a promissory note is a party to it, and each party an original undertaker: Riggs v. Waldo, 2 Cal. 485. As the note itself imports consideration: Id. Where a party signs a joint and several note, he is not entitled to notice of non-payment, though in fact he signed as surety: Hartman v. Burlingame, 9 Cal. 557; Duane v. Corduan, 24 Id. 157. When a promissory note is signed by two persons in the same manner, with nothing to show that one was surety, one of such signers cannot set up that he was a surety only: Kritzer v. Mills, Cal. 21. Where, in the body of the note, one party signs as principal, and one as surety, both are liable: Humphreys v. Crane, 5 Cal. 173. 123. Liability of Guarantor.-The liability of an indorser is a guaranty that he will pay, if the maker does not, upon presentment, if he receive notice. And the liability of a guarantor is the same, and he is entitled to all his rights stricti juris: Riggs v. Waldo, 2 Cal. 485; Ford v. Hendricks, 34 Cal. 673; Pierce v. Kennedy, 5 Cal. 138. Defendant signed a negotiable note, as surety, and delivered it to his principal, on the condition that it should not be delivered to the payee, or negotiated, until another party should have signed the same as co-surety. It was delivered without such other signature, but the payee did not know of such condition, and there was nothing on the face of the note to put him on inquiry: Held, that defendant was liable: Merriam v. Rockwood, 47 N. H. 81; see Hoboken City Bank v. Phelps, 34 Conn. 92. 124. Nature of Contract.-A guaranty is an independent contract, which does not suspend any right of action of the holder of the note against its maker: Williams v. Covillaud, 10 Cal. 419. An indorsement, or a guarantee of a note, is an agreement of itself, a new contract undertaken for another: Aud v. Magruder, 10 Cal. 282. The contract of indorsement is primarily that of transfer; the contract of guaranty is that of security: Brady Reynolds, 13 Cal. 31. V. |