
    Bradford and Birdsall v. J. Martin and M. F. Martin.
    There is no legal liability on the part of a second indorser of a promissoiy note to pay the same to a first indorser, to the order of whom the note is made payable, on the ground that the second indorser put his name on the back of the note before the first indorser placed his name there.
    in an action upon a note of that character, by the first indorser against the second indorser, the note cannot be given in evidence under the common counts.
    (Before Duer, Mason, and Campbell, J.J.)
    May 6, 7;
    June 22, 1850.
    Tins was an action of assumpsit, tried at the New York circuit in June, 1847, before the Eton. John W. Edmonds, Circuit Judge. The declaration contained the common counts, to which was annexed a notice that the action was brought upon a draft or bill of exchange, of which a copy was subjoined, and that- the same would he given in evidence under the money counts. This purported to be a note made by the defendant M. F. Martin, payable to the order of the plaintiffs, and indorsed by the defendant Jarvis Martin. The latter alone defended the suit. Upon the trial, it appeared by the testimony of one of the clerks of the plaintiffs, that the indorsement in question had been admitted by the defendant Jarvis Martin, and that the note was so indorsed ■when it was received by the plaintiffs, who were the payees. The defendants’ counsel objected to the admissibility of tbe note, on the ground that the indorser could not be made liable to the plaintiffs, who were the payees, and that the note was not admissible in evidence under the money counts. The judge overruled the objection, and admitted the note in evidence ; to which the defendant excepted. The defendants’ counsel thea proved by the witness the indorsement of the note by the plain tiffs, and thereupon renewed his objections to the admissibility of the note, on the ground that the first indorser was suing tin second indorser, which he could not legally do. The judge overruled the objection, and the note was thereupon read in evidence. After proof of presentment, protest, and notice of the same to the defendant, the plaintiffs rested. The defendant moved for a nonsuit, which was denied ; and the jury found a verdict for the plaintiffs, for the amount of the note and interest.
    
      0. Ilaring, for the plaintiffs.
    
      Wm. Bliss, for the defendant J. Martin.
   By toe Couet.

Campbell, J.

The note given in evidence on the trial of the cause was as follows :

“ East Greenwdch, July 2, 1846.

“ $402 61. Sixty days after date I promise to pay to the order of Bradford & Birdsall, four hundred two ⅛⅛ dollars, value received, payable at the Washington County Bank.

“ M. F. MaetiN,

“ (Endorsed,)

“ Jarvis Martin,

“ Bradford & Birdsall.”

Now first, it appeared on inspection of the note that the signature of Bradford & Birdsall followed that of the defendant on the back of the note; and second, it appeared by the evidence that in point of time the note was indorsed by the defendant before it was indorsed by the plaintiffs.

The note was offered in evidence under the money counts, and objected to by the defendant, but admitted by the judge. There was no special count in the declaration, and it was conceded in the argument that the defendant must be, charged, if at all, as maker or indorser, and that under the pleadings, he cannot be charged as guarantor or surety.

If, as was said in Herrick v. Carman, (12 John. 159,) and in Labron v. Woram, (1 Hill, 91.) and in the opinion of the chancellor in Hall v. Newcomb, (7 Hill, 416,) it had been clearly shown that Jarvis Martin, the defendant, had indorsed the note for the purpose of giving M. F. Martin, the maker, credit with the plaintiffs, then this indorsement might probably have been converted into a guaranty to pay the note if the maker did not, and under proper averments in the declaration he might have been held liable. But there were no such averments in the declaration, and no proofs to sustain them. Upon the face of the proceedings, it is simply a claim by the first indorser to recover, against the second indorser, on the ground that the second indorser indorsed the note before it was indorsed by the first indorser.

It nowhere appears for what object the note was made or indorsed, or for what purposes it was used; -whether to pay a debt due to the plaintiffs, to obtain credit from them, or to enable them or the maker to obtain the money on it from the bank where it is made payable, or from any other source. Among all the exceptions to the general rules regulating the liabilities of drawers, acceptors, and indorsers, of bills of exchange, and makers and indorsers of promissory notes, I can find no decision or even dictum in this state which would support the proposition of the plaintiffs in this case. It is very evident that courts have gone quite far enough in admitting parol evidence to vary written contracts. But here we are called upon to vary a written contract, and that contract one well understood, and of the greatest importance in a commercial community, upon the mere shadowy outline of parol evidence. We are called upon to say that there exists a legal liability on the part of a second indorser of a promissory note to pay the same to a first, indorser, to the order of which first indorser the note was made payable ; because the second indorser put his name on the back of the note before the first indorser placed his name there. There is neither authority nor argument to support such a proposition.

There must be a new trial, the costs to abide the event of the suit.  