Appellant Reed, by hiscontract, became either an original promissor, or an indorser, or a guarantor, and is equally liable in whichever of these conditions he may be adjudged to stand; and there was sufficient consideration to support the undertaking. (Manrow v. Durham, 3 Hill, 584; Edw. on Prom. Notes, 186, 187.) The note and indorsement, then, considered as parts of and constituting but one transaction, the consideration for the note is consideration also for the guaranty, and its expression for the former stands as its expression for the latter. (1 Pars. on Cont. 196; Riggs v. Waldo , 2 Cal. 486; Evoy v. Tewksbury , 5 Cal. 285; Jones v. Post , 6 Cal. 102; Hazeltine v. Larco , 7 Cal. 33; Union Bank v. Costar, 3 Coms. 204; Story on Prom. Notes, Sec. 134; Edw. on Prom. Notes, 273.)
" Where the note is negotiable and is indorsed in blank by a third person not being the payee or a prior indorsee thereof, then in the absence of controlling proof it is presumed that such person means to bind himself in the character of an indorser, and not otherwise, and precisely in the order and manner in which he stands on the note." (Story on Prom. Notes, Sec. 480. See, also, Edw. on Prom. Notes, 273, 274, 650.)
But if not a guarantor or an indorser, appellant is an original promissor, and as such liable.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
As to the relation of Reed--whether it be that of maker, indorser or guarantor--there is much conflict of authority; but, under the settled rule in this State, he must be regarded as a guarantor. (Riggs v. Waldo , 2 Cal. 485; Pierce v. Kennedy , 5 Cal. 138; Brady v. Reynolds , 13 Cal. 31; Geiger v. Clark , 13 Cal. 579.)
It is equally well settled in this State that the promise of a guarantor is not within the Statute of Frauds if made before the delivery of the note. (Riggs v. Waldo, supra ; Evoy v. Tewksbury , 5 Cal. 285; Jones v. Post , 6 Cal. 102; Hazeltine v. Larco , 7 Cal. 32; Otis v. Hazeltine , 27 Cal. 80.)
The mere fact that Reed indorsed the note several days after it was executed by Hendricks does not affect the question. The note only took effect upon its delivery to Ford, and Reed's name was endorsed upon it before that time.
Judgment affirmed.