
    No. 941.
    Charles Collins et al v. N. B. Trist et al.
    Where a person, not a party to a bill or note, puts his name upon it, he is presumed to have done so as surety, and he is bound thereon as such.
    A Ijl PPEAL from the Fourth District Court of New Orleans, Thíard, J,
    
      Ed. Phillips, for plaintiffs and appellants.
    
      V. Olivier, Jr., and N. B. Frist, for defendants and appellees.
    
      Brief of plaintiffs and appellants.
    
    This suit was instituted upon certain promissory notes given by defendants to plaintiffs for the purchase of a' plantation and slaves, in the parish of Pointe Coupée.
    All the notes sued on, except the one for $1,087 50, were endorsed by Martin Gordon, Jr., but were not protested for non-payment at maturity, and the only matter now in controversy is, whether Mr. Gordon is liable for their payment, either as endorser or surety.
    The District Court decided that he was not liable in either capacity, and rendered judgment in his favor, from which judgment plaintiffs have taken this appeal.
    
      The ruling of the District Court, we respectfully urge, is erroneous, and Mr. Gordon is liable, whether he be viewed as surety or endorser.
    We contend first, that Mr. Gordon is liable as surety on the notes.
    Mr. Trist, one of the defendants who was called on the stand by the plaintiff as a witness, says: “ The endorsements of Martin Gordon on these six notes were placed (on them) before they were delivered to Mr. Collins, and before the act of sale was passed from Collins to Trist.”1 See Rec. p. 73.
    Mr. Gordon was not a party to the notes at all. Mr. Collins requested his name to be upon them as well as the names of the purchasers, before he'would accept them in payment of the property. The name of Mr. Gordon was placed on them in this city several days before the sale was made, the act of sale having been passed in Pointe Coupée, and when the notes were delivered to the payees, the name of Mr. Gordon was on them.
    These are the facts as disclosed by the testimony, and under the well-settled jurisprudence of this State, we think, show very clearly that the contract entered into by Gordon, was as surety and not that of endorser.
    Had the notes been made payable to Mr. Gordon, or had the name of. the payee been left blank, his obligation would have been that of endorser only.
    rlhe decisions of the courts of this State are entirely uniform upon this subject, and are also in accordance with commercial law. .
    In the case of Gooley v. Lawrence, 4 M. 639, after the notes were executed, but before maturity, the holder requested security for their payment, and the defendant endorsed them at the request of the debtor; held that he was liable as surety without protest.
    In 3 N. S. 659, the plaintiff, on selling his property to the maker of the note, required the defendant should give his signature, which was done. The Court held that he signed to secure the payment of the note, and was bound as surety.
    In 10 La. 376, the Court say: “We consider it now well settled, that •when a person, not a party to a bill or note, puts his name upon it, he is presumed to have done so as surety.”
    In 14 La. 389, the Court say: “By putting their names to a bill not made to their order, they must have known that they were making themselves not endorsers but guarantors; that their endorsement must be considered as a direct and positive undertaking on their part to pay the bill, and not as a conditional one; that an absolute guarantee could have been written over their name.” The same rule is recognized in this case as in 10 La. quoted above.
    In 4 R. 162, the same rule is again laid down. The endorsement of the defendants being proved to have been made before that of the payees, they were held to be bound as sureties.
    The same principle was reaffirmed by Chief Justice Eustis, in 1 A. 248, and again in same volume, page 274, in the case of Penny v. Parham, which was a case almost exactly parallel to the one before1 the court, and to which the particular attention of the Court is respectfully asked.
    The same principle is again reaffirmed in 2 A. 592, 3 A. 590, in 4 A. 273, and in 9 A. 533.
    The case of Brand v. LeBlanc, 10 A. 97, appears to conflict with these decisions, but the case is not fully star.. .1 in the decree. An examination of the record in that case, No. 3820, will show that the judgment is strictly in conformity with the previous decisions upon the subject.
    The defendant signed the proces-verbal of the sale as surety for the purchaser, but when the notes were given by the purchaser they were drawn to the order of and endorsed by the surety, M. A. LeBlanc, and in that form they were delivered to the administrator, which indicated clearly the manner in which Mr. LeBlanc intended to bind himself, to-wit: as endorser only.
    In 12 A. 517, the name of the payee was left blank, which the Court held was sufficient to enable any person whose name was on the back to fill' up the blank in such a manner as to make him an endorser.
    These decisions are all uniform, and we think are decisive of the question now presented. Any other construction of the contract would lead, a,s was remarked by Chief Justice Eustis, in 1 A. 274, to a palpable absurdity. It is evident, from the testimony, that Mr. Collins required Mr.' Gordon’s name on the notes to secure, in some form, the payment of the notes to himself, (Mr. Collins;) that Mr. Gordon was to be bound in some manner for the payment of the debt to him, in case the purchasers failed to do so.
    Whereas, if Mr. Gordon be viewed as endorser only, instead of his being bound to plaintiffs for the debt, they, the plaintiffs, being payees, and necessarily first endorsers, would be bound to refund to him the money in case he should have to take up the notes.
    The following authorities from other States also sustain the position alone contended for by us. Many others could be quoted, but we append only those which can be found in our law library; 36 Maine (1 Heath) 147-265; 9 Cushing Mass. 104; 9 Texas, 615; 20 Missouri, (5 Bennet) 571; 2 Cal. 605; 18 Missouri, (3 Bennet) 74-140; 6 Indiana, 478. * * *
   Taliaeekbo, J.

In this case judgment was obtained by plaintiffs against N. B. Trist and the administrator of J. B. Trist, each for one-half the amount sued for, viz: $52,494 11, the aggregate sum of six several promissory notes of different amounts, falling due at different periods, and bearing interest from their respective maturities. These notes were given in payment of land and slaves sold to the defendants, N. B. Trist and J. B. Trist, the latter having died since. In the same suit Martin Gordon, Jr., was included as a party defendant. His sole defence is, that as endorser of the notes, he was entitled to notice of non-payment,' and in default of protest and notice he is discharged. Judgment was rendered in his favor, and the plaintiffs appealed.

. The sole question presented for our consideration is, what is the character of the obligation entered into by the defendant, Gordon, in placing his signature to the notes in question. It appears from the evidence that these notes were drawn several days before the execution of the deed in Pointe Coupée; blank spaces being left for the insertion afterwards of the several amounts, which could not be accurately fixed at the time the notes were presented to Mr. Gordon, in New Orleans, for his endorsement; after which, and at the time of executing the deed in the parish of Pointe Coupée, the blanks were filled. It appears also, that the endorsement of the notes by the defendant, Gordon, was a condition in the contract between the plaintiffs and the' purchasers. Gordon had no interest in, and was not a party to that contract. The notes have never been negotiated, and have not been endorsed by the payees.

,: According to the well-settled jurisprudence of this State, we conclude, from the facts of the case, that the contract entered into by Gordon is that of a surety and not that of an endorser. The decisions of this Court are numerous to the effect, that when a person not a party to a bill or note puts his name upon it, he is presumed to have done so as surety. 10 L. 376; 14 L. 389; 4 Eob. 162; 1 A. 248; 2 A. 592; 3 A. 590; 4 A. 273; 9 A- 533; 12 A. 517.

.. It is therefore ordered, adjudged and decreed that the judgment of the District Court, so far as it relates to the defendant, Gordon, be annulled, avoided and reversed. It is further ordered, adjudged and decreed that Charles Collins and his wife, Louisa Flower, have judgment against the defendant, Martin Gordon, Jr., for the sum of $52,494 11, say fifty-two thousand four hundred and ninety-four dollars and eleven cents, with interest, as follows, viz: On $4,500, six per cent, per annum, from 12th of May, 1860, to the 12th of May, 1862, and eight per cent, thereafter until paid. On the like sum, $4,500, at six per cent, per annum, from 12th May, 1860, to the 12th May, 1863, and eight per cent, per annum thereafter until paid. On the like sum, $4,500, from 12th May, 1860, to' the 12th of May, 1864, at six per cent, per annum, and thereafter at fhe rate of eight per cent, per annum, until paid. On $11,863, eight per cent, per annum, from 12th of May, 1862, until paid. On $12,484 at eight per cent, per annum, from 12th of May, 1863, until paid; and on $14,647 50, at eight per cent, per annum, from 12th of May, 1864, until paid; the defendant to pay costs in both courts.  