ALZERIA CLARKE, Respondent, v. SMITH and PARKE, Appellants

ALZERIA CLARKE, Respondent, v. SMITH and PARKE, Appellants. A promissory note was indorsed by a third person before delivery to the payee : Held, that such indorsement was primS, facie an accommodation to the payee ; but proof that his design was to become a surety or guarantor for the maker, would make him liable to the payee; and default by the indorsor, with proper averments, dispenses with this proof. Appeal from the Tenth Judicial District, County of Tuba. This action was brought for the recovery of a promissory note for §2000, drawn by E. M. Smith, one of the defendants, and made payable ninety days after date to the plaintiffs; which note was indorsed by the other defendant Parke; the complaint avers that Parke indorsed the same before it was delivered to the plaintiff ; and that when it became due, it was duly presented to the maker and payment demanded, which was refused; of which demand and refusal due notice was given to Parke, the said, indorser. The defendants were duly summoned, who made default; and judgment was entered thereupon; from which Parke, one of the defendants, the (indorser) appealed. Meld, for appellant. A default only admits the truth of the facts alleged. No other effect follows; and if the facts do not show a right to recover, the judgment cannot stand. Parke’s liability in the case is that of indorser after the payee (the plaintiff); the latter must be the first indorser, and Parke the second. The payee whose liability comes immediately after that of the maker, cannot sustain an action against a subsequent party, unless such party is a guarantor, which is not the case here. This is in fact an attempt of an indorser to sue his indorsee. It makes no difference that Parke indorsed the note before its delivery; for it is to be presumed he knew that his liability was subsequent to that of the payee. Parke can be considered only an indorser, and not as a guarantor; for the note is negotiable, and as indorser, his liability is second to that of the payee. Sto. on Prom. Notes, sec. 134; Do. on Bills of Exchange, 235; Herrick v. Carman, 10 Johns. Rep. 225; 12 Johns. Rep. 161; 17 Johns. 326; 3 Hill, 233; 7 Hill, 416. [MAJORITY — Heydeneeldt, Justice,] Heydeneeldt, Justice, delivered the opinion of the Court, with whom Murray, Chief Justice, concurred. The note sued on was given by Smith, one of the defendants, payable to the plaintiff; and before it was delivered to the plaintiff, it was indorsed by the defendant Parke. These facts are set out in the declaration, and the judgment by default admits its averments to be true.. It is very evident, that Parke was a guarantor of the note; and although, prima facie, he would be presumed to be an accommodation indorser for the payee, and therefore not liable to him; yet upon proof that such was not the intent with which he acted, but that his design was to be a surety or guarantor for the maker, his liability to the payee is beyond question. The default, upon proper averments, dispenses with this proof; and the judgment is consequently affirmed with costs.