
    *Tillman against Wheeler. 
    
    mere ^A.^on of^gooSsofUie °“ 4 to give him his "ood endorso* «• ° satisfactory ⅛⅛⅞’ to The piaintitr a note ”aa<abiebu> the plaintiff, or order endorsed by the deiend-ant in blank, and the plaintiff the^note, and doods?odA th<S E
    in an action brought, by the piaiutin against the defendant, as guarantee of the note, it was held, that the notTable aTa guarantee; the blank having been anyd "express guaranty. And, proof bet‘oS ¡he contrary, it was thatthTdefendi ant meant merely to be-meferiorTwHii ail the rights ⅛-eident to that character.
    IN ERROR to the Court of Common Pleas of Ontario county, Wheeler brought'a suit in the court below, on a promissory note, dated the 7th of June, 1815, made by Francis Moore and Jeremiah Ahby, payable to the plaintiff, or order, on wh'ch the defendant below, Tillman, had endorsed his name in blank. The declaration contained several counts, one of stated, that whereas, &c., in consideration that the plaintiff, at the special instance and request of the defendant, would se^ and deliver to F. M. and J. A. divers goods, &c., of the value of 200 dollars, on a credit, to be paid on the 7th of June, then next: and that the plaintiff would, at the like special in- : . 1 .. . r , . . T, Jr , T stance and request, receive of and from the said / . M. and J. ¡ their certain promissory note in writing, made by the said F. M. and J. A., bearing date, &c., whereby the said F. M. and J' > ^or vidue received, promised to pay to the plaintiff, &c. the said sum of 200 dollars, on the 7th day of June next, with use anc| ⅛ consideration that the plaintiff would give time for 7 . r . 1 . 1¶ ... ~^ _ T the payment of the said sum of 200 dollars until the fth of June, tiien next according to the tenor and effect of the said promis- ? . r. . sory note, the defendant, by a certain note or memorandum m wrAing, signed by the defendant, and endorsed upon the back of the said promissory note, then and there undertook and faithfully promised the said plaintiff to guaranty to him the payment of the said sum of 200 dollars, with the interest, at ⅛ dle sa*d note specified ; and the plaintiff averred, that, confiding in the said promise and undertaking of the de-fendant, he did sell and deliver to F. M. and J. A. the goods, &,c., on a credit, &c., and took their said promissory note, &c.. and although, &C.
    The defendant pleaded non assumpsit, with notice of special matter to be given in evidence. At the trial, the ^plaintiff. produced the note signed by F. M. and J. A., as above men-r tioned, on which was endorsed the name of the defendant in blank, without any other writing thereon. The plaintiff proved ’ íhat the makers of the note, being desirous to purchase of the plaintiff a quantity of leather, on a credit, offered to give their joint note; but the plaintiff refused to sell the leather to them on a credit, unless they procured a good endorsor or satisfactory security, and, among other persons, he named Tillman, as a person with whose security he would be satisfied ; that F. M. and J. A. soon afterwards applied to the plaintiff for the leather, and produced the above mentioned note, executed by them, and endorsed by Tillman in blank, but without any agreement or undertaking, in writing, to guaranty the payment of it; and the plaintiff, in consideration of the note, and solely on the responsibility of Tillman, as he then declared, sold the leather to the said F. M. and J. A., &c.; but Tillman was not present or privy to any of the conversation between the plaintiff and the makers of the note. The plaintiff having rested his cause on this evidence, the defendant’s counsel insisted that he had not given sufficient evidence to support his action ; not having proved any express or implied agreement on the part of the defendant to guaranty the payment of the note ; and who could not be made liable in any other way than as endorsor of the note. The plaintiff’s counsel insisted, that the plaintiff having refused to sell his goods without security, and having, in consideration of the note so made and endorsed, sold and delivered the goods, the defendant ought to be considered as ■having guarantied the payment of the note, and to be charged with the payment thereof, and that the plaintiff had a right to enter over the name of the defendant a guaranty comporting with the counts in the declaration, so as to take the.case out of the statute of frauds. The court declared their opinion to be, and so charged the jury, that, under the facts proved, the plaintiff was entitled to recover the amount of the note of the defendant; that the plaintiff was not bound to prove any express promise in writing by the defendant, further than had •been already shown ; and as, by reason of the note so endorsed, fhe plaintiff *had parted with his property, the defendant was to be considered as having guarantied the payment of the note. Tin* jury accordingly found a verdict for the plaintiff for 237 dollars and 66 cents.
    ? A bill of exceptions was tendered to the opinion of the court, on which the writ of error was brought.
    
      Townsend, for the plaintiff
    in error,, contended, that the plaintiff in eror was to be considered as an endorsor only of the note, and could not be made liable as a guarantee. He cited Nelson v. Dubois, (13 Johns. Rep. 175.) Herrick v. Carman, (12 Johns. Rep. 159.) and Campbell v. Butler, (14 Johns. Rep. 349.) as bearing on the question. Here there was no express guaranty written over the name of the plaintiff in error ; and the proof, therefore, did not support the declaration ; and, according to the opinion of Spencer, J., in Herrick v. Car-
      
      man, in absence of any proof to the contrary, it must be h>tended that Tillman meant only to become the second endorsor, with all the rights incident to that situation.
    Again ; if F. was sued as a surety or guarantee, the plaintiff was bound to show that he had resorted to the principal for payment, without effect. (2 Johns. Cases, 409. 15 Johns. Rep. 425.)
    
      Parker, contra,
    insisted, that T. was to be considered as an original party or guarantee of the note. (Leonard v, Vre-denbergh, 8 Johns. Hep. 29.) The court will presume that the blank endorsement wars filled up, so as to support the declaration, (Pangbum v. Ramsay, 11 Johns. Rep. 141. Elting v. Vanderlyn, 4 Johns. Rep. 237.)
    
      
       This and the two following cases were decided in October term.
    
   Yates, J.,

delivered the opinion of the court. It does not appear from the return, that Tillman knew for what purpose the note was designed, or that there was any promise to, or communication between, him and the holder of the note; nor is any liability shown, except such as he would be subject to as the endorsor of an ordinary negotiable promissory note.

This case is not distinguishable from Herrick v. Carman, *(12 Johns. Rep. 159.) except that the suit was in that case brought against the person signing, as endorsor; and in this case, on the implied special agreement or guaranty. They do not, however, vary in principle. The liability in this case was the same. For aught that appears, Tillman, for the accommodation of the drawers, and the original payee, or first endorsor, may have put his name on the note as second endorsor, on the responsibility of the payee ; this is the legal presumption from the appearance of the paper, without any explanatory proof, or a special undertaking on the part of Tillman, who does not appear to have known any thing of the original contract between the drawers and the payee ; nor can the court infer from any thing in the case, that he was privy thereto. In the cases cited from 13 Johns. Rep. 175. 14 Johns. Rep. 349. and 15 Johns. Rep. 425., the endorsor had either been present and agreed to guaranty the payment, or it appeared in proof tha1 he knew the extent of his endorsement to be as alleged, which is not the case here.

The proof, that Wheeler declared he delivered the goods solely on the responsibility of Tillman, cannot vary the nature of the paper he gave, unless it should also appear that such declaration was made to Tillman, or was known to him, at least, before he endorsed the note; but that does not appear. If. under the. circumstances of this case, the endorsement be construed to be a special guaranty, and an original contract in consideration of the delivery of goods, there is no case in which a note, innocently endorsed by a second endorsor, previous to the endorsement by the first, in which, without his knowledge, vitfee responsibility may not be varied. The judgment below must be reversed, and a venire de novo issue, returnable at the Ontario circuit.

Judgment reversed.  