Brady v. Reynolds

Citations

• 13 Cal. 31

Syllabus

<p>Where a promissory note was made payable to S. and previously to its delivery to the payee, was indorsed for the accommodation of the maker, by H. and brother and defendant, upon an agreement of the indorsers with each other that each would become surety if the other would; Seld, that the indorsers were guarantors and were jointly and not severally liable, in a suit by the payee, or a third person taking the note after maturity.</p> <p>To create a several liability, express words are necessary.</p> <p>The decision of this Court in Riggs v. Waldo, 3 Cal. 485, only goes to the extent of holding that a notice of protest is as essential to charge a guarantor as an indorser.</p> <p>Quere: Whether the intimation of the Court in that case as to there being no distinction between the undertaking of an indorser and that of a guarantor, is correct. The contract of indorsement is, primarily, that of transfer; the contract of guaranty is that of security.</p> <p>A judgment against one or more joint guarantors of a note bars the action against the others. When the contract is joint, and not'joint and several, the entire cause of action is merged in the judgment.</p>