delivered the opinion of the court:
On the 18th May, 1875, George Brazier and William Brazier executed their promissory note, due at ninety days, to appellant, James W. Stevens. On 10th February, 1877, Stevens transferred the note to respondent without indorsement, in payment of one hundred dollars, and the respondent took the note as payment of such amount, due him from another party, but thus paid by Stevens, through an arrangement between that other party and Stevens. The note, although past due at the time of the transfer by Stevens to respondent, was represented by said Stevens to be good.
Respondent presented the note to the makers for payment, and payment was refused, and several months thereafter respondent notified appellant of .such demand and refusal. The appellant then endorsed the note by writing his name on the back thereof. The note was not thereafter paid by the makers, but the respondent did not notify appellant of such non-payment by the makers, except by the institution of this action. *541The court below gave judgment for plaintiff (respondent here) and, thereupon said Stevens (defendant) appealed to this court.
The purpose of appellant in endorsing the note does not appear, otherwise than inferentially. No testimony was introduced to explain it, and there was no valuable consideration for the indorsement passed at the time it was made. The appellant had, at the time of the delivery of the note to respondent, represented to the respondent that the note was good. "We are of a necessity, therefore, to infer that appellant’s indorsing the note was simply as a guaranty that the note was good. Before, therefore, the appellant could be held responsible, it was incumbent upon the respondent to show that the note was not good. 2 Pars, on Bills & Notes, 141. This has not been done nor attempted to be done. No action was ever brought against the makers, prior to the present suit, to ascertain the fact, nor any execution returned, with the return of the officer, showing that the money could not be made out of the makers; nor is there any proof of the insolvency of the makers at the time of delivery, or indorsement, or since. The respondent having failed to show that the note was not good, the appellant was not responsible.
The judgment of the court below is reversed, with costs.
HuNteR, C. J., and EmeksoN, J., concur.