a consideration that was conditional and was not performed. Gilbert v. Duncan, 29 N. J. Law, 133; Id. 521; Chaddock v. Vanness, 35 N. J. Law, 520. But, as a general rule with respect to paper regular in form, our decisions did not, even as between the parties, admit of the introduction of parol evidence to vary the commercial contract that was held to arise from the terms of the instrument; for instance, as between successive accommodation indorsers, Johnson v. Ramsey, 43 N. J. Law, 279; Middleton v. Griffith, 57 N. J. Law, 442, 448; Kling v. Kehoe, 58 N. J. Law, 529; Foley v. Emerald Brewing Co., 61 N. J. Law, 428, 431. In other jurisdictions the rule adopted in this state with respect to excluding parol evidence of the intent of the parties to a negotiable instrument regular on its face, where such evidence would tend to vary the contract that the law merchant implies from the form of the instrument, was not uniformly adhered to, it being held in many states that in actions between the parties parol evidence was admissible to show that they had agreed otherwise than as would appear from the face of the note. 1 Dan. Neg. Inst. (6th Ed.) § 717, and cases cited; 2 Rand. Com. Paper, §§ 740, 741, 778, 779, and cases cited; Crawf. Ann. Neg. Inst. Law (2d Ed.) § 118. In this state of the law our new Negotiable Instruments Act was passed, P. L. 1902, p. 583. Prior to its enactment a similar act, or one substantially similar, had been adopted in 16 American states, and had been enacted by Congress as the law of the District of Columbia. Crawf. Ann. Neg. Inst. Law, preface to second edition. We must attribute to our Legislature an intent to render the law of this state respecting negotiable instruments conformable to the law in these other states. And at the same time it is obvious that the act was intended to do away with some of the distinctions established or recognized by our adjudicated cases respecting the form and mode in which a contract of indorsement might be entered into, and the effect of making such an indorsement, whether as between the parties. or with respect to subsequent holders of negotiable paper. By section 63 of that act (P. L. 1902, p. 594), "a person placing his signature upon an instrument otherwise than as maker, drawer or acceptor, is deemed to be an indorser unless he clearly indicates by appropriate words his intention to be bound in some other capacity." This, of course, abrogates so much of Chaddock v. Vanness, 35 N. J. Law, 517, 10 Am. Rep. 256, as held that an irregular indorsement of itself imported no implied or commercial contract whatever. Section 642 is as follows: [Quoting it.] 1 N. Y., § 113. — C. 2 N. Y., § 114. - C. It will be observed that this section deals with the rights of the payee and subsequent parties, and has not the effect of defining the rights and liabilities of several irregular indorsers as between themselves. These are set forth in section 68,3 which reads as follows: "As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise," etc. This does not, by express mention, sanction parol evidence; neither does it expressly exclude any kind of evidence, whether written or verbal. Is parol evidence excluded by implication? If the legislative design was to admit only written evidence for the purpose indicated, it would have been unnecessary to say anything upon the subject, for by the common-law rules of evidence other writings explanatory of the real agreement would, of course, have been admissible. When we recall that a previous section had brought irregular and regular indorsers into a single category in the absence of an expressed intention to the contrary, that the first clause of section 68 renders the mere act of indorsement only prima facie evidence of the contract as between successive indorsers, and that by previous decisions parol evidence as between irregular indorsers was for all purposes admissible, and as between regular indorsers was for some purposes admissible and for other purposes not, it is easy to arrive at the conclusion that the section was intended to admit parol evidence in all cases between indorsers for the purposes of showing what was the agreement amongst themselves. This view brings our state into accord with the rule already laid down in some other jurisdictions as the common-law rule. At the same time it does not destroy the value of the instrument as a commercial instrument, for it is not against those who subsequently take the instrument in the course of commerce that the explanatory evidence is admitted. When we remember that the rules of the law merchant in this regard were established especially for the protection of subsequent holders of the instrument, and that the liability of indorser arises not from any words expressed upon the paper but from implications that originated in the necessities of trade and commerce, it is reasonable to attribute to the Legislature an intent to leave the paper open to explanation by parol as between the indorsers themselves. This is the effect that was given to section 68 of the act in the recent decision of this court in the case of Morgan v. Thompson, 72 N. J. Law, 244. In our opinion, therefore, the act admits of the introduction of parol evidence to show the actual agreement made between several indorsers, notwithstanding it contradicts the prima facie inference appearing from their successive indorsements. * * * Judgment for defendant reversed and a new trial granted. N. Y., § 118. — C. NEGOT, INSTRUMENTS-30 8118 LANE v. STACY. 8 ALLEN (MASS.) 41. - 1864. BILL in equity to compel defendant to assign to plaintiff one-half the security given to protect plaintiff and defendant's intestate as payee-indorsers of a note. The note was made by the mortgagor to plaintiff and the intestate, and by them indorsed. The mortgage was given to the intestate without plaintiff's knowledge. HOAR, J. It is not denied by the defendant that a surety is entitled to share in the benefit of the security taken by his co-surety. But he contends that his intestate was not the co-surety of the plaintiff; and relies upon the well-settled rule that the liability of successive indorsers upon a note is fixed by the contract which the position of their names upon the paper establishes, and that, unless by express agreement, one is not bound to contribute to a payment of the note by the other, even if both are accommodation indorsers. The principle is sound, but has no application to the case at bar. Stacy and Lane are not successive indorsers. They are joint indorsers. The note was made payable to their joint order, and could only be transferred by their joint act. Which name is first put upon the paper is therefore immaterial, as by the indorsement they incurred a joint responsibility for the debt of the promisor. Each is therefore entitled to share in the security taken by the other. Decree according to the prayer of the plaintiff's bill.1 VI. Acceptor for honor. See § 284, post., pp. 701-706. VII. Guarantor. 1. (a) DOES A GUARANTY-INDORSEMENT BY THE HOLDER TRANSFER TITLE? TRUST Co. v. NATIONAL BANK, 101 U. S. 68, ante, p. 263. JOHNSON V. MITCHELL, 150 Tex. 212, ante, p. 289. 1. (b) MAY A GUARANTY BE WRITTEN ABOVE A BLANK INDORSEMENT? BELDEN v. HANN, 61 Iowa, 42, ante, p. 269. CLARKE v. PATRICK, 60 Minn. 269, ante, p. 270. 1 See Neg. Inst. L., § 71. This section (118) changes the law to the extent of rendering the obligation joint and several instead of joint. — H. 2. IS A TRANSFEREE A HOLDER IN DUE COURSE? TRUST Co. v. NATIONAL BANK, 101 U. S. 68, ante, p. 263. 3. WHAT IS THE CONTRACT OF THE GUARANTOR? BROWN v. CURTISS. 2 NEW YORK, 225. — 1849. ACTION against defendant as guarantor of a promissory note. Defendant was payee of the note. He wrote upon it, "I guaranty the payment of the within; Charles Brown," and transferred it to plaintiff in payment of a debt. No demand on the maker, or notice. of non-payment to defendant. Defendant offered to show that for several years after the note fell due the maker was solvent; that he then failed, and was insolvent at this time. Evidence excluded. Judgment for plaintiff. BRONSON, J. It is said, on the one side, that the defendant is the maker of a promissory note, and liable as such; and on the other side that he is an indorser, and has been discharged for the want of demand and notice. And strange as it may seem, there are cases in the books which go to uphold both of these positions. But they are both wrong. The defendant is neither maker nor indorser of a promissory note. On the contrary, he has in very plain terms made a contract of a different kind from either of those one well known to the law; and by that contract he must either stand or fall. He has guarantied the payment of G. F. Brown's note; and we have no right to turn that contract into one of a different kind. This is so plain a principle that it would seem to be enough to mention it, without saying anything more. And yet there are cases which hold, that the guarantor of a promissory note may sometimes be treated as maker, and some times as indorser. This has usually been allowed for the purpose of giving effect to the supposed intention of the parties, as ascertained from extrinsic evidence; though there has not always been so fair an apology for altering the contract. But on whatever ground the courts may have acted, it is a dangerous proceeding. At the very best, it violates the salutary rule, that all prior negotiations between the parties are to be deemed merged in the final written agreement; and allows that agreement to be overruled by the conversations. which preceded it. If the parties have made a mistake in drawing up their contract, the instrument may be reformed in equity, by a direct proceeding for that purpose. But the courts can have no right, under color of construing the agreement, to say that it means something else from what the language of the instrument plainly imports. I have contended earnestly, though not always with success, for this doctrine. (Seabury v. Hungerford, 2 Hill, 80; Miller v. Gaston, Id. 188; Manrow v. Durham, 3 Id. 587; Leggett v. Raymond, 6 Id. 639.) But the side of truth and principle will sooner or later prevail; and the decisions of the court of errors in Hall v. Newcomb (7 Hill, 416; 3 Id. 233, s. c.), and of this court in Spies v. Gilmore (1 Comst. 321), have greatly shaken, if they have not entirely overthrown the cases in which the courts have taken the liberty to remodel the contract of the parties. Those cases have never had any ground of principle to stand on, and I trust they will never again be cited as authority in this state. I do not mean that the very words of an agreement are always to be followed. Construction is often necessary for the purpose of ascertaining what the parties intended by the words which they used. But when the meaning of the instrument has been ascertained, the office of construction is at an end; and the contract can only be enforced as the parties have made it. The defendant has very plainly contracted as a guarantor. If he is not liable as such, he is not liable at all; and if he is liable as such, he cannot get rid of the obligation by calling himself an indorser, or anything else. The undertaking of the defendant was not conditional, like that of an indorser; nor was it upon any condition whatever. It was an absolute agreement that the note should be paid by the maker at maturity. When the maker failed to pay, the defendant's contract was broken, and the plaintiff had a complete right of action against him. It was no part of the agreement that the plaintiff should give notice of the non-payment; nor that he should sue the maker, or use any diligence to get the money from him. The cases in Massachusetts. Maine, and Pennsylvania, which hold a different doctrine, (Oxford Bank v. Haynes, 8 Pick. 423; Talbot v. Gay, 18 Id. 534; Gamage v. Hutchins, 23 Maine, 565; Gibbs v. Cannon, 9 Serg. & R. 198; Isett v. Hoge, 2 Watts, 128), are not law in this state. With us, proceedings against the maker are only necessary where there is a guaranty of collection. The point was decided long ago that a guaranty of payment, like the one in question, is not conditional, but an absolute undertaking that the maker will pay the note when due. (Allen v. Rightmere, 20 John. 365.) All of our cases go upon that 2 2 Sylvester v. Downer, 18 Vt. 32; Forest v. Stewart, 14 Oh. St. 246. - H. 3 Accord: Bank v. Hopson, 53 Conn. 453; Hance v. Miller, 21 Ill. 636; Studabaker v. Cody, 54 Ind. 586; Roberts v. Hawkins, 70 Mich. 566; Clay v. Edgerton, 19 Oh. St. 549. [Elgin City Bking. Co. v. Hall, 119 Tenn. 548. C.] Contra: (Contract conditional) Crooks v. Tully, 50 Calif. 254; Rockford N. B. v. Gaylord, 34 Iowa, 246; Newton Wagon Co. v. Diers, 10 Neb. 284; Mizner v. Spier, 96 Pa. St. 533; cases from Me., Mass., and Pa., criticised in the principal case. But the guarantor may waive the holder's laches. Sigourney v. Wetherell, 6 Met. (Mass.) 553; Pattillo v. Alexander, 96 Ga. 60. - - H. |