
    
      E. G. A. Baker vs. Martha J. Scott.
    
    W. A. purchased goods from the plaintiff, and, being required to give security, drew his promissory note payable to the plaintiff. — got the defendant to put her name on the back of it, and then delivered it to the plaintiff: plaintiff afterwards endorsed the note in blank, putting his name above that of the defendant.
    
      Held, that parol evidence was admissible to explain the circumstances under which the note was executed by W. A. and the defendant and indorsed by the plaintiff. Held also, that defendant was liable on the note as an original maker or promissor. Held further, that plaintiff, by afterwards indorsing the note, did not change its character or absolve the defendant,
    
      In the City Court of Charleston, November Term, 1851.
    This was an action of assumpsit on a promissory note, a copy of which is as follows.
    210 King-street, Charleston. S. C.
    $115. December 19, 1850.
    Six months after date, I promise to pay to the order of E. G. A. Baker, one hundred and fifteen dollars, value received.
    {Indorsed.'> (Signed) William Ashton.
    E. G. A. Baker, Martha J. Scott.
    
      His Honor, the Recorder, reported the case as follows.
    “ The declaration in this case, in the first count, substantially alleges “ that one William Ashton made a certain promissory note, for value received, for one hundred and fifteen dollars, payable to the plaincifF’s order, at six months, and that he delivered the same to the plaintiff; that the defendant, Martha J. Scott, afterwards and on the same day at, and by writing her name on the back of the said promissory note, for value received, promised the plaintiff to pay to his order the said sum of one hundred and fifteen dollars, agreeably to the tenor and effect thereof, and being so liable, <fcc. afterwards promised to pay the same,” &c. There are several other counts in the declaration that may be brought to the view of the Court, if thought necessary, by the production of the record. The proof offered by the plaintiff to make out his case, was as follows.
    “ 1st. The testimony of one Thomas Rink, taken by commission. — He says, in substance: that William Ashton wanted to purchase some goods from the witness, acting as agent of the plaintiff; that witness visited the store of Ashton cn the 18th December, 1850 ; that he (witness) offered to sell him the goods j and that Ashton prososed to give him his note with the endorsement ol Mrs. Martha J. Scott; witness would not have sold the goods without this endorsement; witness furnished the goods at Charleston for him (Ashton) and delivered them to him on the 19th December, 1850, and took his note with the endorsement— he says, further, the note sued on was received by him from William Ashton ; that at the time he received it, it was endorsed by Martha J. Scott, and that there was, at that time, no other endorsement on it.
    “ William Ashton being sworn, proves the signature of himself and of the defendant to the note.' Witness gave the note to agent of the plaintiff, for goods bought by witness from him; says there was an understanding between witness and plaintiff’s agent, that he should give a note at six months, with Martha J. Scott’s endorsement. Witness denied that this understanding existed previous to or at the time of the purchase, and said it did not take place until after the delivery of the goods — that the plaintiff's agent received the note with Scott’s endorsement alone; witness wrote the present note on a clean piece ot paper, and then handed it to Mrs. Scott for her endorsement, who wrote her name on the back, and it was handed by witness to the plaintiff’s agent; witness would have given the note payable to Scott, but plaintiff’s agent requested it to be made out, as now, in the name of the payee. Mrs. Scott had been in the habit of endorsing his paper occasionally, and the note was given in this case to put the plaintiil on a footing with other creditors; witness first drew a note payable to Mrs. Scott, but as plaintiff’s agent preferred to have it drawn in its present shape, he tore up the first one and drew the present.
    “ Mrs. Scott did not know what the note was given for; she was not privy to any understanding between the witness and the plaintiff’s agent. She was present, however, in witness’s store, where she endorsed and the note was given. Baker’s (the plaintiff’s) name was not on the note at the time ; it must have been endorsed by him afterwards.
    “ The counsel for the defendant objected to the testimony of Rink and Ashton when offered, on the ground, that it would be permitting the plaintiff to set up a parol contract inconsistent with a written contract. I overruled the objection.
    “ The defendant’s counsel moved for a nonsuit, on several grounds. I overruled his motion, and the plaintiff, under some understanding with the defendant’s counsel, took a verdict.
    “ 1 refused the motion for a nonsuit, principally, because the plaintiff having sustained by proof his cause of action, and especially under the first count of his declaration, I thought he might be able to shew his right in law to recover against the defendant, under some one or other of the counts in his declaration. I would only remark, that in regard to the cause of action as stated in the first count, the facts proved would seem to bring the matter within that class of cases, (of which there are many in the books) in which a party who writes his (or her; name on the back of a note, may be regarded as a severa 1 drawer or promissor to the note itself — in the same way as though the party had subscribed his (or her) name at the foot, or upon the face of .the contract. I thought that, upon Rink’s testimony, any difficulty as to the consideration of the defendant’s undertaking, under the statute of frauds or at common law, was entirely removed; as Ashton, from the relation in which he appears to have stood towards the defendant, might well be regarded as her agent in the whole transaction. At all events, it is clear, that if the defendant can be regarded, under the circumstances, as a several promissor or drawer, the note itself (as well from its express terms as from mercantile law,) is sufficient prima facie evidence of consideration.”
    The plaintiff appealed, and now renewed her motion for a nonsuit, on the following grounds, viz :
    1. Because there was a fatal variance between the allegation in the first count in the plaintiff’s declaration and the instrument declared upon — the former alleging that the note in question was drawn payable to the plaintiff or order, and was endorsed by the defendant to the plaintiff, or to his order, whereas, the note itself shews that it was made payable to the plaintiff or order, and by him endorsed; and subsequently thereto, was endorsed by the defendant.
    2. Because neither the count in question, nor the instrument declared upon, shews any legal privity between the plaintiff and the defendant; for while the former fails to deduce a title to the note from the payee, throueh whom alone it could be legitimately derived, the latter presents the legal anomaly of the prior endorser of a note seeking to recover against a subsequent endorser.
    3. Because the variance between the second count in the declaration, and the proof adduced to sustain it, is no less palpable than that which exists in relation to the first count, inasmuch as the count in question charges the defendant upon a collateral undertaking to pay the debt of a third party under the staiute of frauds, whereas the instrument adduced to sustain it, is a regular promissory note for the payment of money absolutely — ■ upon the back of which, the name of the plaintiff stands as the first, and the name of the defendant as the second endorser thereof, (
      
      )
    
    4. Because the note in question bears no resemblance whatever to the class of cases in our books, “ where a party who puts his name on the back of a note may be regarded as a several drawer or promissor,” first, because the note in question is a regular negotiable note within the Statute of Anne; and, secondly, because if it had belonged to that anomalous class of cases, there was no count in the declaration to sustain that legal relation.
    And failing in that motion, then she moved for a new trial, upon the ground:
    ■ Because it is submitted that his Honor, the Recorder, erred in permitting the testimony of Rink and Ashton to be introduced, the effect of which was not merely to vary the instrument declared upon, but completely to annihilate it, and to substitute in its stead a contract different from it in every 'essential particular.
    
      
      Brewster, Munro, for the motion,
    cited Chit, on Bills, 560; 1 Chit. PL 334; 2 Penn. R. 301; 10 Johns. R. 224; 9 Eng. C. L. R. 154; 2 McC. 218; 1 N. & McC. 129; 2 McC. 388; 2 McM. 313; 11 Mass. 436; 5 Term. 152 ; 2 Stark. Ev. 552-548.
    Northrop, contra,
    cited 5 Mass. 545; Id. 358; 1 Cranch. 522.
    
      
      ( a ) The following is a copy of the second count in the declaration:
      And whereas, also the said defendant heretofore, to wit: on the same day above-mentioned, at Charleston aforesaid, and within the jurisdiction aforesaid, in consideration that the said plaintiff should sell and deliver unto one William Ashton, certain goods of great value, to wit: of the value of one hundred and fifteen dollars, undertook and promised the said plaintiff that she woutd endorse a certain promissory note to be maae by the said William, bearing date the day and year aforesaid, for the payment of tire said sum of one hundred and fifteen dollars, six months after the date thereof, by the said Wihiam, as maker, and by the said defendant as endorser thereof, to the said plaintiff or his order according to the : enor and effect thereof— and whereas, afterwards, to wit: at Charleston aforesaid, and within the jurisdiction aforesaid, to wit: on the same day, the said plaintiff sold and delivered the said goods, of the value of one hundred and fifteen dollars, to the said W illiam, and he, the said William, made his certain promissory note, in words and figures as follows, to wit:
      “ $115 00 210 King-street, Charleston, S. C.
      December 19th 1850.
      Six months after date, I promise to pay to the order of E. G-. A. Baker, one hundred and fifteen 00 000 dollars, value received.
      Wilt.iam Ashton.”
      And the said defendant endorsed the said note, and the said William and the said defendant delivered the same to the said plaintiff, and the said defendant then and there promised to pay to the said plaintiff, the said sum of money, in the said promissory note specified, according to the tenor and effect thereof, as the endorser of the said William — and the said William did not pay the said sum of money in the said promissory note specified, although the same was there presented to him on the day when it became due, whereof the defendant then and there had due notice, and thereupon the defendant became liable -to pay, and then and there agreed to pay, the said sum of money, to the said plaintiff, on request.
    
   The opinion of the Court was delivered by

Whitner, J.

The case of Stoney vs. Beaubien, (2 McM. 313,) is considered by this Court as conclusive of the point raised in this case. These cases belong to a peculiar class, but having been well considered and the authorities on which they rest fully examined in the case adjudged and reported, but little remains for me to do than to announce the judgment of this Court. The contract, in its legal construction, is a promise made as well by the defendant, as by Ashton, the other promis-sor, for value received. It is insisted that this is a promise to pay the debt of another, and void because of a want of consideration. By the pleadings, as well as the note, Ashton and the defendant each assumes, for value received, to pay to the plaintiff the same sum of money. The fact that their names are placed on different sides of the paper, in no way changes the promise. If this note had been made and delivered to the plaintiff, and afterward the defendant had been induced, as a new and collateral undertaking, to affix her name, the objection raised must then have - been considered. The signatures, it would seem, were made at the same time, each certainly before the note was delivered to the plaintiff. When received by him, therefore, it was the note of each. On a question as to the fact, this is certainly prima facie evidence of good consideration, and throws the onus of proof on the defendant. Credit was given, as appears by direct evidence, on the faith of this promise by each, and whilst it continues the object and duty of the Court to enforce contracts, a willing ear will not be afforded to one who aids, by the use of his name, such an enterprize as that in which Ashton was embarked, A passing word is, perhaps, necessary to disembarrass the case of the supposed dilemma in which this plaintiff is placed by putting his own name on the back of his own note, as endorser it would seem — thus occupying, as it is alleged he did, the post of danger, by placing his name above that of the defendant. Had this note passed from his hand, or remaining in his possession, unexplained, the -prima facie evidence of the paper itself would have been against him. But parol proof is admissible as to mode of execution ; and certainly, as to the order of signatures, as amongst several endorsements, it is competent to shew their true order. The accidental arrangement on the paper cannot be regarded as conclusive. This might be illustrated by many analogies. The fact here certainly was incontrovertible, that the note was executed by Ashton and Scott before delivery to plaintiff, and, therefore, complete as a several undertaking. Assuming this to be the note of Ashton and Scott, payable to Baker or order, it cannot be that the signature of his name on the back, either through mistake, or, it may be, for the purpose of passing to another by indorsement, at least whilst it was undelivered, could so far retroact upon the paper itself, as to change its character and absolve the maker. There is no fraud pretended. The circumstances preclude such an imputation. As in the case of an endorser, he might have stricken out his name before suit brought, or on the trial, and should not be' prejudiced by the act.

The motions for nonsuit and for new trial, are refused.

O’Neall, Evans, Frost and Withers, JJ. concurred.

Motions refused.  