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upon the paper itself. It could not be shown that the want of a signature was due to mistake or oversight; though a suit in equity could, it seems, be maintained in a proper case to correct an omission in signing due to mistake.1

were held a good indorsement on evidence of the intention; and the same case, referring to George v. Surrey, Moody & M. 516, as to signature by mark.

1 See Lancaster Bank v. Taylor, 100 Mass. 18; Beard v. Dedolph, 29 Wis. 136; Brown v. McHugh, 35 Mich. 50, 52. These are cases of omitted indorsement; but the principle is probably general.

CHAPTER III.

THE MAKER'S CONTRACT.

§ 1. SIGNATURE.

THE contract of the maker of a promissory note differs in one respect from that of any other party to a contract of the law merchant; the writing itself shows, apart from grace, what the contract is. One has but to read the note to see that it is an absolute undertaking to pay.

The contract itself may be executed in any way, so far as the signature of the maker is concerned. Ordinarily the maker signs the note at the right lower corner; but that is not necessary. His signature written anywhere on the paper will bind him as maker if that was the intention. It may even be written in the body of the promise, as where the note reads, 'I, A B, promise to pay,' etc. provided that it was intended that the name as written there should answer the purpose of a signature.1

There is this difference, however: Where the signature is placed at the end of the note, the intention is fixed; the signing in that way is an execution of the note as matter of law, in the absence of fraud practised upon the maker in regard to the instrument itself. But if the signature be out of the usual place, it is then a question of fact whether the supposed signature was intended as an execution of the instrument; the burden being upon the holder to show that it was so intended." The simplest kind of 1 Taylor v. Dobbin, 1 Strange, 399.

2 Compare In re Booth, 127 N. Y. 109; Watts v. Pub. Admr., 4 Wend. 168; Catlett v. Catlett, 55 Mo. 330; Armstrong v. Armstrong, 29 Ala. 538. These are cases of wills.

contract is the one now assumed to be in question, where the promise is made by one person only. That is the typical case, the case from which to start, the case from which

all others are more or less variants.

§ 2. JOINT AND SEVERAL SIGNATURE.

The note may be signed by more than one person; and then, according to the intention manifested, it will be the several note of each, or the joint note of all, or it will be either the one or the other as the holder may choose to treat it. The question which of these it is, will be a question to be ascertained from the writing itself. The language of the note may in terms state the intention; as where it reads, 'We jointly promise,' or 'We jointly and severally,' or 'We or either of us,' or 'I, A B, as principal, and I, CD, as surety, jointly and severally promise;' or the language may not in terms declare the intention. In the latter case the intention is a matter for construction, on the language used, the rule whereof appears to be this: If there is nothing to indicate a different intention, the promise of the makers is to be deemed joint. For example (hypothetical): We promise to pay to A or order $1000, six months from date,' followed by the signatures of the makers, would be a joint promissory note, as there is nothing in the language to indicate that the makers intended to bind themselves severally.

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Where the promise is joint, there is this addition to the typical case of a promise by one person only, that the promise is now the indivisible undertaking of two or more. Apart from statute there can be but one right of action for the breach of the contract in such a case, and hence when that right of action is pursued to its end, obviously nothing more can be done. There are not as many rights of action as there are parties; and if suit should

"I promise to pay" eigned by Joint and several note.

by two or more is a Stove, 7 mass, 58, cit.

Hemmenwayv
2. Ames, B.Jn! p.507-

be brought against one without objection, and judgment should be obtained against him, then though the judg ment should prove fruitless, no action could be brought against the others. Where the promise is several, there are as many rights of action. on which of course as many judgments may be obtained

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as there are makers; though as there is but one debt, one satisfaction satisfies all rights of action and all judgments. Where the promise is joint and several, the holder has an election; he may treat the makers as liable in either way.2

One further point touching joint promises may be noticed. The promise may be made by partners or not. If made by partners, any of the partnership may act for the firm; and accordingly, a refusal to pay, on the day of maturity, made by any one of the partners, would be a breach of contract by all, so that suit could be brought, on the same day, upon the note (of course it would be against all the partners). But if the joint promisors were not partners, and no agency existed between them, there could be no breach of the contract before the close of the day of maturity, except by demand upon and refusal by all.

Another modification of the typical case occurs where one of the promisors undertakes as surety. If the fact of suretyship is shown upon the note, the holder must govern himself accordingly. The surety is still a maker, — that is, he promises to pay; but he promises sub modo, he promises subject to certain restrictions imposed by the

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1 King v. Hoare, 13 Mees. & W. 494; Sessions v. Johnson, 95 U. S. 347; Bigelow, Estoppel, 104-109, 5th ed.

2 'If two bind themselves by contract jointly and severally, they may both be joined as defendants in one action; or either or each of them may be sued in a separate action. For when the contract is in this form, the obligation created by it may be treated as either joint or several, at the election of the party who is entitled to recover for the breach of it.' Gould, Pleading, § 69.

suretyship upon the holder of the note. The holder must not have dealings affecting the contract, such as agreements to extend the time of payment, behind the surety's back.1 Otherwise, however, the surety stands in the same situation as the principal maker. If the fact of the suretyship is a private matter, understood only between the principal and the surety himself, it has no bearing upon the rights of the holder; towards him there might as well have been no special understanding. But should he have notice of the understanding at the time of taking the note, or should he afterwards receive or acquire notice, then, by the better view, he would have to govern his conduct as if the fact were shown upon the paper itself.2

§ 3. SIGNING AS AGENT.

How ought a man to sign a promissory note who intends to exempt himself from liability? This question arises constantly in cases of alleged (or actual) agency. A, who in point of fact is treasurer or otherwise agent of B, has occasion to execute a promissory note solely on behalf of B; how is he to do it? If he wishes to exempt himself, he should do so in terms or by plain if not necessary implication; otherwise his signaturethat is, signing his own name to the note will bind him as maker, whether the principal is bound or not.

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The agent does not exempt himself from liability within the rule just stated in terms or by plain if not necessary implication' by adding words which are merely descriptive of the position which the agent holds.

1 On this subject, further infra.

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2 The case referred to in the text is suretyship in the ordinary sense, not in the sense which would make an accommodative acceptor, for example, a surety. As to cases of that sort, see Farmers' Bank v. Rathbone, 26 Vt. 19; L. C. 622.

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