I dissent. The agreement to "indorse and guaranty the payment of the said promissory note and bonds" became a present guaranty of payment as soon as the transaction was closed by the formation of the new corporation, the turning over by the Mercantile Company of all its business and property to said new corporation and the issuance of the bonds of the new corporation to the Mercantile Company. The making of the agreement in this form was an offer to guarantee the bonds. The turning over of the property and the issuance of the bonds, as agreed, was an acceptance of the offer, and it put the guaranty in force at once as a binding contract. I do not think there is any disagreement in the authorities on this point, with respect to the agreement to guaranty. (See Bishop v. Eaton, 161 Mass. 496, [42 Am. St. Rep. 437, 37 N.E. 665]; Petty v. Gacking, 97 Ark. 217, [33 L.R.A. (N.S.) 175, 133 S.W. 832]; James v. E.G. Lyonds Co., 134 Cal. 191, [66 P. 210].)
The last cited case was so held because of the section of the Civil Code (3197) covering a promise to accept a bill of exchange, and it may not be authority directly to the point above stated. But it cites the common-law rule as the foundation of the section. It does not derive its force from the code entirely, and the other cases cited refer to the other classes of cases similar to the case at bar.
It is not necessary to hold that the same effect follows with regard to the agreement to "indorse" the bonds. An indorsement, in the strict sense, is a technical transaction, doable only by writing the indorser's name on the back of the instrument, or on an allonge attached to it. There is some conflict of authority, even where the consideration has passed, over the question whether one can be sued in equity as an indorser if he has merely signed an agreement to indorse. But it is universally agreed that in such a case he is liable for the damages *Page 234 for the breach of contract, if he fails or refuses to make the indorsement.
Henshaw, J., concurred.
Rehearing denied.