This action against the executors of S. N. Pike was, in form, on his guarantee for the performance of the agreement on the part of the defendant L. F. Harrison, which the latter made with the plaintiff.
The amendment which was allowed at the trial changed the cause of action, and charged the decedent, Pike, as an original contractor or promissor, and rendered it neoessary for the plaintiff to establish, by competent proof, that such was his relation to her. It was so, because the signature of Pike was by indorsement, and not by subscription to any expressed obligation of any kind.
The defendant has not appealed from that proceeding, and it stands intact to be considered as part of the case, with all the benefit to the plaintiff to be derived therefrom because the defendant succeeded. The plaintiff, after the amendment, proved by parol, under objection and exception, what occurred prior to the execution of the agreement between her agent and Mr. Pike, and it appeared that the plaintiff refused to make the contract with the defendant Harrison alone, and said, through her agent, that if Mr. Pike would not join in the contract none would be made. Mr. Pike then said he would accede to her wishes, and signed his name by writing it upon the margin of the agreement. The indorsement or signing by Mr. Pike upon the margin of the agreement does not express what participation in the obligation of Harrison he meant to take, whether as surety, guarantor or original contractor.
The evidence thus given was not to vary or contradict the agreement, but to show why it was that he signed the paper where he did, and in that way to show what he meant to assume ; what, in other words, was his relation to the contract. If he had subscribed the agreement, there is no doubt on adjudged cases (Parkes v. Brinkerhoff, 2 Hill, 663; Baker v. Robbins, 2 Denio, 136), that he would be liable as originally and jointly bound. The name being at the foot of the agreement would leave no doubt of it. In the former case, Justice CoweN said : “If it were ambiguous, it is *240by no means clear that it might not be made available by extrinsic evidence.” In the latter case, which was an agreement’ in reference to shingles, Chief Justice BroNSON said: “In the body of the instrument Clark alone is mentioned as the contracting party, but it is evident from the names subscribed to it, without resorting to the extrinsic evidence, that Iinrd also intended to bind himself as a joint contractor with Clark, and the intention of the parties, when it can be gathered from the writing and is not contrary to law, must be carried into effect.”
It might, perhaps with propriety, be said, that it is evident from the paper itself that the decedent, Pike, intended to bind himself as a joint contractor because he signed the agreement, and in no way expressed any other obligation or intention.
The cases cited, it must be conceded, are not entirely like this, but the difference consists only in the position of the signature, and this seems too unimportant to change the principles announced. It may be said that, strictly, the only parallel for this case is, where a person writes his name on the back of a note not negotiable, the legal consequence of which is that he may be held as maker or guarantor. (Richards v. Waring, 1 Keyes, 576 ; Moore v. Cross, 19 N. Y., 227.)
Here, unless some interpretation is given to the signature of Mr. Pike, he assumed no liability, because there was, as already said, nothing written over it.
If the plaintiff had the power to overwrite the name of Pike with a contract implied by law, or recover against him as an original contractor or guarantor, then the amendment was unobjectionable, because it only expressed his obligation, and parol evidence to sustain it, could not affect the interests of his estate, while it sustained the legal result predicated of his signature in the place mentioned. There is no distinction between a note and an agreement recognized. In the cases in 2 Hill and 2 Denio (supra), the rule was applied to both. They rest on the same principles, and should be governed by the same rule.
It is quite clear that the decedent meant to be bound in relation to Harrison’s contract, and if the plaintiff could regard him as an original contractor or guarantor, the view of the learned justice at the trial was erroneous, and a new trial should be granted.
*241The decision heretofore rendered in this case on the appeal in reference to a contemplated amendment does not affect the question under discussion.
It was only intended by that decision to pass upon the propriety of the order appealed from. It was not designed to limit the plaintiff’s cause of action or remedy to what was then revealed.
The plaintiff was entitled to have the issue passed upon created by the amendment allowed upon the trial, namely, whether or not the defendants’ testator was a joint contractor with Harrison, and there must therefore be a new trial, costs to abide event.
Davis, P. J., and Daniels, J., concurred.Judgment reversed and new trial ordered, with costs to abide event.