Butler v. Rawson , 1 Denio 105 ( 1845 )

By the Court, Bronson, Ch. J.

The rule is nearly or quite universal that there can be no recovery against a surety, where his character appears on the face of the instrument, without declaring specially on the contract. It is said that an action against the makers of a promissory note, which one of them has signed as a surety for the other, forms an exception to the rule ; and that in such a case the plaintiff may recover on the money counts. But there is a case in point the other way. (Wells v. Girling, 8 Taunt. 737.) This decision stands upon principle. In the common case of a suit against the makers of a promissory note, the instrument may be given in evidence under the money counts, for the reason that the note is evidence of money lent to, or had and received by the makers to the plaintiff’s use. But when one of them signs as a surety for the other, and that fact appears on the face of the instrument, the note furnishes no evidence that he received thé whole or any part of the consideration. Indeed, it proves the contrary; for the principal debtor must have received the whole consideration. As the note does not prove that both of the makers have received money, the holder cannot recover without declaring on the contract.

When a note has been properly given in evidence under the money counts, proof that it was not in fact given for money, but for land or work, will not defeat the action. (Hughes v. Wheeler, 8 Cowen, 77; Smith v. Van Loan, 16 Wend. 659.) But here the difficulty is, that the note itself does not furnish evidence which will warrant its admission under the money counts.

The fact that a copy of the note was served with the declaration will not aid the plaintiff. The statute on that subject only applies to cases where different parties, as makers and endorsers—drawers and acceptors—are joined in one action. (Stat. 1837, p. 72, § 1.)

The plaintiff has the same difficulty to encounter whether he seeks to recover upon the first or the last note; for both were in the same form. Whether upon a proper declaration he can recover against the surety upon the note which was given up, is a question which need not now be considered.

New trial granted.