The defendant was sued as guarantor of this note, and unless he put his name on the back of it for that purpose, the judgment in his favor was right, for it is not insisted that the action can be maintained against him as indorser. The position which his name occupies is that of second indorser, and in order to impose a different liability upon him, it is necessary to show by extraneous proof that he did in fact become a party to the note in a different capacity. This is attempted to be done by showing that he put his name upon the note in its inception, and before it was put in circulation, and hence for the purpose of adding to the security of the note as an original party. Ordinarily such a presumption would arise from the fact proved, but that presumption is again rebutted by other facts also established by the same witness. . Here the payee of the note is also one of the makers. It was impossible, therefore, that the defendant put his name upon the note for the security of the payee, which is indispensable in order to create a suretyship. All the parties knew that the note, while in the hands of the payee, was a mere nullity, — without vitality, — creating no right or liability whatever. It could never become' an operative instrument, except by the indorsement of the payee. He would then become the first indorser, and his name would precede that of the present defendant. This shows Beyond all question that the defendant, by putting his name on the note, intended to assume the responsibility of second indorser, and not of guarantor, so that the payee, being necessarily the first indorser, would be responsible to him, in case he had to pay the note, instead of his being obliged to answer to the payee, in case of the failure of the makers. Such were the legal rights and liabilities of the parties, as shown by the proof, and such is their legal position on the paper, which was notice to the plaintiff, when he took the paper, of the extent of those rights and liabilities.
The judgment must be affirmed.
Judgment affirmed.