Bradford v. Bradford. able, as one against disputing one's will surely is, as nothing can be more in conformity to good policy than to prevent litigation,will be held binding and valid." We think, then, that the court below did not err in holding this condition to be valid, and that upon its breach the plaintiff's legacy would pass to the general residuary legatees named in the will, without express words to that effect. From certain findings of fact made by the court below, it appear that, at the time when the plaintiff instituted proceedings to contest the will under which he now claims, the will had been admitted to probate by order of the court of common pleas, upon appeal from the probate court, but had not been fully and correctly recorded by the probate judge that he had left blanks in the record of the will, where pen erasures and interlineations appeared in the original will as probated, which he subsequently filled up, so as to correspond with the original. And the plaintiff here claims that he contested the validity of the will as it appeared of record, which was different from the real will, as proved and ordered to be recorded. The court below, however, has found that the will was admitted to probate, and that the plaintiff afterward contested it. And we cannot say that the court erred in so finding. If the will was imperfectly recorded, it does not follow that the subsequent contest referred to the will as recorded. The issue of devisavit vel non, provided for by statute, is made upon the original writing purporting to be the will, and not upon the record of it. This issue may be made and tried at any time after the will has been admitted to probate, and before any actual record of it has been made. Such an issue draws in question, not the accuracy of the recorded copy, but the valid execution of the original. There are other questions which the plaintiff in error seeks to raise, but in which he has no interest, if he is excluded by his contest of the will from the rights of a legatee. Of the rulings of the court upon other questions, those only whose rights were thereby affected can have a right to complain. Motion overruled. Clay v. Edgerton. CLAY, plaintiff in error, v. EDGerton. (19 Ohio St. 549.) Promissory note— guaranty of payment. The owner and holder of a promissory note transferred it to the plaintiff, and, at the same time, indorsed thereon the following: "I guarantee the pay. ment of the within note to C. Edgerton or order.-Isaac Clay." In an action on the guaranty, held, first, that no consideration for the guaranty need be alleged; second, that, as the guaranty was absolute, no averment of demand and notice was necessary. THIS is a petition in error, prosecuted in this court to reverse a judgment of the district court of Wood county, affirming a judgment of the common pleas of that county in favor of the defendant in error and against the plaintiffs in error. The plaintiff in the original case, Edgerton, attempted to bring his action against both Clay and Hoot, and the following is a copy of the statements of his petition: "The plaintiff says that this his action is founded on a promis sory note, of which the following is a copy: MONTGOMERY, February 28, 1860. Four years after date, I promise to pay Thomas S. Carman, or bearer, the sum of one hundred dollars, for value received, with use. (Name in German) JOHN HOOT. "On the back of said note are the following indorsements: Without recourse. D. L. JUNE. I guarantee the payment of the within note to C. Edgerton or order. ISAAC CLAY. "The defendant John Hoot is liable on said note as maker, and the defendant Isaac Clay as indorser and guarantor. The plaintiff, Chester Edgerton, is the holder and owner of said note. There is due from the defendants to the plaintiff on said promissory note the sum of one hundred dollars, which he claims, with interest from the 28th day of February, 1860, and for which he asks judgment." The defendant Clay was duly served with process, but it does not appear that Hoot was ever served with process, either actually or constructively, or that he, at any time, appeared in the case while in the court of common pleas. Clay v. Edgerton. Clay appeared, and demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action against him. The demurrer was overruled, and, in the petition in error in the district court, that ruling was assigned for error. Thereupon Clay answered in these words: "And now comes the aid defendant, and, admitting the execution of said note as set up in said petition, says that said note was assigned to him by T. S. Carman, and by him assigned, long after its delivery and the assignment thereof to him by said Carman, and before the same became due, to plaintiff. Affiant says the plaintiff gave him seventy-five cents on a dollar for said note, and no more. That, in consideration thereof, he assigned and conveyed the same to the plaintiff. And defendant says that plaintiff never has assigned said note to Hoot, the maker thereof, nor demanded payment of said Hoot thereof, nor has he presented said note to this defendant, or demanded payment thereof, nor notified this defendant that said note was unpaid; and defendant says that for a long time after said note fell due, to wit, for nearly six months thereafter, said Hoot resided in Wood county, and was perfectly responsible, and said note could have been, with reasonable care or diligence, collected of said Hoot, wherefore this defendant prays that he may be hence dismissed," etc. To this answer Edgerton demurred, on the ground that it did not state facts sufficient to constitute a defense. The court sustained this demurrer; and the case being submitted to the court, a judgment was thereupon rendered against both Clay and Hoot for the amount named in the note, and interest. The ruling of the court of common pleas, sustaining the demurrer to the answer of Clay, was also assigned for error in the district court. And it is assigned for error in this court that the said district court erred in affirming the judgment of the court of common pleas. Henry H. Dodge and J. R. Tyler, for plaintiff in error. J. F. & S. B. Price, for defendant in error. BRINKERHOFF, C. J. (after stating the facts). The case presents three principles: 1. Did the court of common pleas err in overruling the demurrer of Clay to Edgerton's petition? 2. Did that court err in sustaining the demurrer to Clay's answer? And, 3. Did that court err in giving a joint judgment against both Clay and Hoot for the amount of the note and interest? These in their order. And first as to the sufficiency of the petition. It is claimed in argument in behalf of the plaintiffs in error, that the petition is defective, for the alleged reason that no good or valid consideration for Clay's guaranty of payment of the note is alleged in the petition. We think otherwise. No motion was made in the case to compel the plaintiff to make his petition more definite and certain in its averments, and under the provisions of the code of civil procedure it is to be liberally construed for purposes of justice. As applied to a negotiable note, the words "indorsement and indorser" imply a transfer of the title to the instrument indorsed, and the acceptance of such transfer is itself a sufficient consideration for the guaranty accompanying the indorsement. Clay is not only alleged to be a guarantor of the payment of the note, but also to be liable to the plaintiff as an indorser thereof. And this imports a consideration, as is ruled in How & Co. v. Kemball et al., 2 McLean, 103; and in Heaton v. Hulbert, 3 Scam. (Ill.) 489. True, had Edgerton relied solely on the fact of Clay's indorsement of the note as a ground of recovery, he might have failed in his action failed for want of due demand and notice, perhaps, but not for want of indorsement. In the second place, it is argued by counsel for plaintiffs in error that the petition is insufficient, because it contains no allegations of demand by Edgerton upon Hoot, the maker of the note, for payment thereof, and notice to Clay of non-payment. On this point much confusion has doubtless arisen from a failure to discriminate between a guaranty which depends on some contingency or condition, and one which is in its terms absolute and unconditional. Where a guaranty is dependent on some condition or contingency expressed in or fairly implied from the terms of the contract of guaranty, a compliance with those terms on the part of the guarantee is necessary, and must be alleged and proved in order to a recovery upon it. But where the guaranty of payment is absolute and unconditional, we are of opinion that it is not necessary, in order to make out a prima facie case for recovery, to aver or prove either demand or notice. This, we think, is fairly inferable from what is said by this court in Bashford v. Shaw, 4 Ohio St. 266. And this view of the question is directly ruled in Allen v. Rightmere, 20 J. R. 365; Brown v. Curtiss, 2 Coms. 225; Breed v. Hillhouse, 7 Conn. 523; Read v. Cutts, 7 Greenl. 156; and Heaton v. Hulbert, 3 Scam. (Ill.) 489. We are aware that cases may Clay v. Edgerton. be found in which the point has been ruled otherwise; but it seems to us that the reasoning of BRONSON, J., in Brown v. Curtiss, supra, is unanswerable and irresistible. And there is nothing either in Bashford v. Shaw, supra, or in Forest v. Stewart, 14 Ohio St. 246, adverse to this conclusion; and what is said by the court in Greene v. Dodge & Cogswell, 2 Ohio, 431, related to a case in which the court construed the contract of guaranty sued on to be a conditiona one. Now, the contract of guaranty in the case before us is absolute and unconditional. Its language is: "I guarantee the payment of the within note to C. Edgerton or order;" and we are of opinion that no averment of demand or notice in the petition was necessary; and if any loss had resulted to the guarantor by reason of any laches on the part of the guarantee, such laches, if it could be made available at all, would be matter of defense to be set up by the guarantor. For these reasons we are of opinion that there was no error in the overruling of the demurrer to the petition. The next question is, Did the court of common pleas err in sustaining the demurrer to the answer? The substance of the answer, or rather the substance of what the pleader seems to wish to be understood as averring, is, that, for nearly six months after the note became due, the maker, Hoot, continued to reside in Wood county, and was during all that time in solvent circumstances, and that, had the note been sued on during that time, it might have been collected from him. Whether, if this averment was true, and it was also true that at the time suit was brought upon the guaranty Hoot had left Wood county and had become utterly insolvent, the guarantor would have been discharged from the obligations of his contract of guaranty, is a question which we are not called on to decide because, for aught that appears in the answer, Hoot may still be, and may all along have been, a resident of Wood county, and the owner of property subject to execution ample to satisfy any judgment on this note. The court of common pleas did, however, fall into one error, and one which is doubtless due to the carelessness of the attorneys in not looking after their journal entries. The court gave judgment against Hoot as well as Clay, although the former had never come nor been brought into court, and as to him the court acted without jurisdiction. The judgment against him as it stands is void; but he is entitled to rid himself of the cloud of a void judgment. The joint judgment of the court of common pleas against Hoot and Clay VOL. II.-54 |