
    Nicholas Cottrell v. Henry Conklin.
    The decision of the Court of Appeals in Spies Y. Qillmore, appears to have settled the law, that under no circumstances can an endorsement in blank of a promissory note be converted into a guaranty of its payment by the endorser.
    If in any case evidence for such a purpose may be received, the proof must be direct and positive that such was the agreement, and that an express authority to fill the blank with a guaranty, was given at the time of the endorsement.
    Under an allegation in a complaint that the plaintiff had paid, laid out, <&c., moneys for the defendant, evidence to charge the defendant as an endorser of a promissory note cannot be received.
    Nor can such evidence be received in support of an allegation that the defendant guaranteed the payment of the note. The variance would be material and fatal under § 111 of the Code.
    In an action against an endorser of a promissory note, all the facts necessary to be proved in order to charge him, must be averred in the complaint.
    New trial; with liberty to plaintiff to amend, upon payment of the costs of the action.
    (Before Due it, Campbell, and Bosworth, J.J.)
    Oct. 5; Oct. 28, 1854
    Tbe action was brought to recover the sum -of $3,842.22 with interest claimed to be due from the defendant to the plaintiff.
    The complaint charged, First. That the defendant was indebted to the plaintiff in the sum of $3,697.99, for so much money paid, laid out, and expended for the defendant, and at his request. Second. That P. Gr. Sherman and P. Kryler, partners, under the firm of Sherman & Kryler, were indebted to the plaintiff on certain promissory notes made and delivered by them to the plaintiff, and amounting to the sum of $3,697.99, and that when these notes were about to become due, the defendant agreed that if the plaintiff would deliver the same to Sherman & Kryler, and take from them new notes for the same amount, he, the defendant, would guarantee to the plaintiff the payment of such new notes; that the plaintiff in pursuance of this agreement did deliver to Sherman & Kryler their promissory notes then held by him, and received from them five new notes made by them for different sums, and payable at different periods, and that the defendant in pursuance of his agreement did then and there guarantee to the plaintiff the payment-of the said, new notes, and endorsed and placed Ms name on each of said notes as sucb guarantee. The complaint then, after describing particularly the new notes, averred that when they became due and payable, they were not paid either by Sherman & Kryler or by the defendant, and that they were still due and unpaid.
    Lastly. The complaint then alleged that the defendant was indebted to the plaintiff in the sum of $144.23, as a balance due on certain acccounts between them, and claimed judgment for the aggregate sum of $3,842.22, besides interest, and charges of protest-
    The answer denied absolutely the first cause of action. Second. Denied that the defendant ever agreed that if the plaintiff would surrender to Sherman & Kryler the notes first mentioned in the complaint, and take new notes for the amount thereof, he,, the defendant would guarantee to the plaintiff the payment of such new notes, averred that although SheTman & Kryler did deliver to the plaintiff the notes secondly mentioned in the complaint, he, the defendant, did not guarantee the same for the amount thereof, or for any amount, and did not endorse or place his name on all or any of them as guarantee for the payment thereof to the plaintiff. That the defendant did endorse certain notes, which, as he had understood and believed, were paid by the plaintiff, who was the payee therein, to the bank in whose hands they were, and that such payment was made by him in consequence of his obligation to do so, as between himself and the defendant.
    The answer then averred in substance that all the notes so endorsed by the defendant, and which were the same mentioned in the complaint, were endorsed by him at the request, and for the accommodation of the plaintiff, and subject to the plaintiff’s responsibility as payee and first endorser; that in respect to the two first notes mentioned in the complaint, he, the defendant, had never received any notice whatever that the same were dishonored or unpaid, or that in any way whatever he would be held liable therefor; and that the fifth note was given in renewal of a note previously endorsed by the defendant, at the request and for' the accommodation of the plaintiff, and wMch the plaintiff was unable to take up at its maturity.
    The answer then admitted the defendant’s indebtedness for the balance of $144.23 claimed by the complaint, but denied that the plaintiff was entitled to any judgment beyond that amount.
    
      There was a reply to tbe answer, denying that the notes were endorsed by the defendant for the accommodation of the plaintiff, and reaffirming the allegation that the endorsement was a guarantee. '
    The cause was tried upon these pleadings, before Bosworth, J., and a jury, on the 10th June, 1853. The five notes mentioned in the complaint were proved on the trial, marked 1, 2, 3, 4, 5; each of them was signed by Sherman & Kryler, and was payable to the plaintiff or order three months after" date. No. 1, dated 17th March, 1850, for $799.19, endorsed Henry Conklin, Nicholas Cottrell. No. 2, dated 29th June, 1850, $1,023.78, endorsed, Henry Conklin, Nicholas Cottrell. No. 3, dated 3d April, 1850, for $341.8, endorsed Nicholas Cottrell, Henry Conklin. No. 4, dated 17th April, 1850, for $966.40, endorsed Nicholas Cottrell, Henry Conklin, Nicholas Cottrell. No. 5, dated 29th April, 1850, endorsed same as No. 4, for $566.74. P. G-. Sherman, who, as a witness for the plaintiff, proved the execution and delivery of the notes, also proved the execution and delivery by his firm, Sher-' ■man & Kryler, to the defendant, of an assignment and mortgage which were read in evidence upon the trial, but the contents or purport of which it is deemed unnecessary to state, as they have no relation to the grounds upon which the cause was ultimately decided. The witness then said, that after this assignment the credit of his firm was not good, and that the plaintiff refused to take their paper without an endorser. That they then asked the defendant to endorse their notes, to be given to the plaintiff for lumber which he had sold to them. That the defendant wrote his name on the notes at his, witness’s house, and that he gave them to the plaintiff, and that the notes were not paid when they became due by his firm, or by the defendant. The witness also stated as his impression and belief, that the notes in suit were given in renewal of former notes given to the plaintiff by his firm without an endorser. The residue of the testimony of this witness is omitted as not bearing on the points decided. Other witnesses were examined whose testimony is omitted for the same reason. The cashier of the Farmers’ and Merchants’ Bank, Middletown, New Jersey, proved that notes 1, 2, 3, were discounted for the plaintiff at that bank, and not being paid when they became due, by the makers or by the defendant, were taken up by the plaintiff. Nos. 4, and 5, were not discounted, but merely deposited by tbe plaintiff for collection.
    Tbe defendant’s counsel admitted due service of notice of protest of all tbe notes except tbe two first, and objected to tbe evidence that was given to prove tbe service of notice of tbe dishonor of these as insufficient in law. Tbe court overruled tbe objection, and tbe counsel excepted. Tbe evidence so objected to ⅛ omitted for tbe reason already given.
    When tbe plaintiff rested, tbe defendant’s counsel moved that tbe complaint should be dismissed upon several grounds, and among them tbe following: that tbe evidence did not sustain tbe complaint. Tbe complaint seeking to charge tbe defendant as a guarantor of tbe notes in question, while tbe evidence established that be was an endorser only.
    Tbe Judge denied tbe motion, and tbe counsel excepted to tbe decision.
    Tbe defendant offering no evidence, tbe court directed a verdict to be taken for plaintiff for $4,615.46, subject to tbe opinion of the court at General Term upon all the questions of law arising in tbe case, either upon tbe pleadings or tbe evidence, with liberty to tbe court at General Term, to dismiss tbe complaint or to correct tbe amount of the verdict if necessary, if a judgment should be ordered for tbe plaintiff.
    
      J. W. Edmonds, for tbe plaintiff,
    moved for judgment on tbe verdict. He insisted that under tbe count for money paid, laid out, .and expended, tbe notes endorsed by tbe defendant, supposing him to be liable only as endorser, might properly be given in evidence, and that tbe circumstances proved, relative to tbe time, manner, and motives of tbe delivery of the notes, were conclusive to show that there was a contract by which tbe defendant was to be liable to tbe plaintiff as first endorser. He cited in support of this part of bis argument, Butler v. Wright, 2 Wend. 369 ; Bishop v. Hayward, 4 Yerm. R. 471; Britton v. Webb, 2 B. & Gr. 480; Gbitty on Bills, 8th Amer. Ed. 567; Bayley on Bills, 5th Ed. 330. Tbe learned counsel further argued, that if under tbe complaint, tbe defendant could not be charged as an endorser, tbe decisions justified him in saying that upon tbe evidence be might very properly be treated as a guarantor, since, there are many cases that show, that where a third person puts his name on the back of a note before its delivery to the payee, he makes himself liable as a surety for the maker, (8 Pick. 122, 24 id. 641,) and when the endorsement is made to give credit to the maker, and under an agreement that the endorser shall be liable to the payee, it turns the contract into a guaranty, and where the endorsement is in blank such a contract may be written over it. (Campbell v. Butler, 14 John. 849; Herrick v. Carman, 12 John. 159.)
    Lastly, the counsel insisted that should the court be of opinion that the plaintiff upon the evidence could not be made liable as guarantor, nor under the complaint as framed be made liable as first endorser, the court should then allow the complaint to be now ¿mended, although no motion for that purpose had been made on the trial, so as to enable the plaintiff to recover against the defendant as an endorser; and he accordingly moved that-such an amendment be made. The power of the court to order the amendment could not be doubted. There were numerous cases to show the existence of the power and the propriety of its exercise. The counsel referred, among many others, to the following authorities. (6 Cow. 40; 7 Cow. 517; 1 Rawle, 149; 1 Wend.. 92; 5 Conn. R. 265; 5 Wend. 112; 6 Cranch. 206.)
    
      G. Wood, and J. Graham, for defendant,
    insisted that the exceptions taken on the trial ought to have been allowed, and particularly that the motion for dismissing the complaint upon the ground that the plaintiff’s evidence had failed to establish a guaranty, ought to have been granted. No motion had then been made to conform the complaint to the proof, nor could such an amendment then have been made; nor could it now be made, since it would change the entire structure of the complaint, and substantially the nature of the action: such an amendment was not within even the large powers given to the court by the Code, §§ 169, 171, 173. Where a party is sued as guarantor, and the proof shows that he is only liable as án endorser, there can be no recovery, and the court had no discretion but to dismiss the complaint. The counsel then contended at large, that even were the complaint amended as desired, and treated as having been so amended on the trial, the evidence then given was wholly insufft-cient to render tbe defendant bable as an endorser to tbe plaintiff. Upon tbe actual evidence neither tbe jury nor tbe court could be authorized to say that tbe defendant meant to be bable otherwise than as second endorser, nor consequently to be bable to tbe plaintiff at ab.
    
      
       The signature of Nicholas Cottrell in every instance had a line drawn over it.
    
   By the Couet.

Campbell, J.

It is plainly only as a guarantor of tbe notes in question, that tbe complaint seeks to charge tbe defendant, and tbe first question therefore, is whether tbe evidence upon tbe trial was admissible; and if admissible, was sufficient to establish bis babibty as such — and we are clearly of opinion that it was not.

"We think that tbe decision of tbe Court of Appeals in Spies v. Gilmore, (1 Coms. 321,) fobowing that of tbe Court of Errors in Hall v. Newcomb, (7 Hill, 416, note p. 426,) has settled tbe law that when a person endorses in blank a promissory note, even with tbe intent of making himself personaby bable to tbe payee, tbe contract of which bis act and name are evidence, is an endorsement in tbe full legal sense of tbe term, and cannot, either by construction of law or by proof of extrinsic facts, be converted _^into a guaranty, or any other or different contract whatever. Tbe payee, when be has any right of action against him which be seeks to sustain, must sue him as an endorser, and must aver in bis complaint and prove upon tbe trial ab tbe facts necessary to charge him, as such. We assent entirely to tbe observations of Justices Bronson and Jewett, that tbe doctrine which tbe earlkr cases strongly favored, that tbe endorser of a promissory note may, under certain circumstances, be charged as maker or guarantor, and tbe guarantor as maker or endorser, stood upon no ground of principle, and must now be regarded as corrected and exploded. (Bronson, J., 1 Corns. 324; Jewett, J., 2 Corns. 548.) It is true that tbe doctrine appears stib to be followed in other states of tbe Union, but it is certainly no longer tbe law in this.

Admitting, however, that there are cases in which, without contravening tbe decisions to which I have referred, parol evidence, for tbe purpose of converting a blank endorsement into a guaranty, may stib be admitted, we think it cannot be doubted that tbe evidence which is to have this effect must be direct and positive tbat sucb was tbe agreement of tbe parties at tbe time, and tbat an express authority to fill np tbe blank witb a guaranty was tben given. Here there is no snob evidence, and nothing resembling it. Tbe defendant was asked to endorse tbe notes, and be did endorse them, and there is not tbe slightest reason to suppose tbat in so doing be meant to incur any other obligation than tbat of an endorser. Whether be meant to be liable as such to tbe plaintiff is a different question, not necessary now to be considered. We are told, however, tbat although tbe proof upon tbe trial-may not have been sufficient to charge tbe defendant as a guarantor, it was amply sufficient to warrant a recovery against him as an endorser; but tbe objection to this view of thé case is unanswerable; tbat under tbe complaint as framed tbe proof relied on ought not to have been received at all, and tbat tbe Judge, even bad a motion for tbat purpose been made, bad no power so to amend tbe complaint as to render tbe proof admissible.

Tbe supposition tbat tbe proof could be received in support of tbe allegation in tbe complaint, tbat tbe plaintiff bad paid, laid out, and expended moneys, corresponding in amount witb tbe notes, at tbe request and for tbe benefit of tbe defendant, we cannot, for a moment, hesitate to reject. Whether, as tbe law was formerly understood, in an action by an endorsee, against an endorser of a promissory note, tbe note could be given in evidence under all or any of tbe money counts in a declaration, it is useless to inquire. It is sufficient to say tbat under a money count in a complaint, tbe proof cannot be received without repealing tbe provisions of tbe Code, in tbe construction tbat we have invariably given to them. Tbe proof cannot be received unless we bold tbat it is no longer necessary to set forth in a complaint tbe facts constituting tbe cause of action, but tbat tbe conclusions of law from those facts, may, witb entire propriety, be substituted. To bold this, would, in our judgment, render tbe provisions of tbe Code a mockery and a snare.

It is manifest tbat tbe endorsement of a note is no proof whatever tbat tbe bolder bad in fact advanced or expended moneys for tbe benefit of tbe endorser, and it was not so properly by a conclusion, as by a fiction of law, tbat it was ever so considered. If tbe allegation in tbe complaint before us, tbat tbe plaintiff had: expended money for the benefit of the defendant, is to be considered, as it must be, as the averment of a fact, it is an averment that so far from being sustained, was contradicted by the proof. We know that the notes were not delivered to the plaintiff to secure or satisfy a debt due to him from the defendant, but that the sole consideration' of the delivery was a debt due to him from the makers. We must now repeat what on several occasions we have felt it necessary to say, that in every action founded on a promis-, sory nóte, the note itself or its contents must be set forth in the complaint, and that when the action is against an endorser, all the facts necessary to be proved on the trial in order to charge him as such, must be distinctly averred. (Lord v. Cheesebrough, 2 Sand. S. C. Rep. 696; Garvey v. Fowler, id. 668; Adler v. Bloomingdale, 1 Duer, 601.)

It follows from what has now been said, that if the notes endorsed by the defendant were admissible in evidence at all, they -were only so in support of the allegations in the complaint that the defendant had agreed to guarantee their payment, and the objection then is, that the, variance between the allegations and the proof was material and fatal — a variance which the Judge could not disregard, and had no power to correct; and such is clearly our opinion. Notwithstanding a partial resemblance, the .differences between a contract of guaranty and a contract of endorsement are so wide and essential, that it is impossible to say that the allegation of the one contract as the cause of action is sustained by proof of the existence of the other. In such a case, the variance from the allegation is, in the words of the Code, not “in some particular or particulars only, but in its entire scope and meaning,” (Code § 171;) and the Judge may properly dismiss the complaint on the ground of “the failure of the proof” necessary to sustain the action. As in the case before us, the Judge on the trial could not under § 169 of the Code have ordered the complaint to be amended by inserting an allegation of the facts necessary to charge the defendant as an endorser, so we have not the power to order this amendment under § 173, since its effect would be to change substantially both the claim and the defence. Our meaning is, that we cannot order the amendment so to be made as to enable the plaintiff to retain the present verdict, but that setting aside the verdict, we may permit it to be amended upon terms, we do not doubt, but these terms must be the payment of all the costs that have accrued since the service of the summons — as the case stands, there must be a new trial, but the plaintiff has liberty to serve an amended complaint within twenty days, upon the terms that have been stated.  