Plaintiff offered to prove that defendant has so abused the horse that it was materially injured and lessened in value and the plaintiff had refused in consequence to receive it back. This evidence was excluded and plaintiff excepted to the ruling.

BY THE COURT. The evidence offered by the plaintiff ought to have been admitted, to prove, if he could, that the horse had been abused and injured by the defendant, and so to show that the defendant had put it out of his power to comply with the condition, by returning the horse. The sale was on a condition subsequent; that is, on condition he did not elect to keep the horse, to return him within the time limited. Being on a condition subsequent, the property vested presently in the vendee, defeasible only on the performance of the condition. If the defendant, in the meantime, disabled himself from performing the condition, and if the horse was substantially injured by the defendant by such abuse, he would be so disabled,— then the sale became absolute, the obligation to pay the price became unconditional, and the plaintiff might declare as upon an indebitatus assumpsit, without setting out the conditional contract. Moss v. Sweet, 3 Eng. Law & Eq. 311; 16 Ad. & El. N. S. 493.

New trial ordered.

CHAPTER II.

DISCHARGE OF CONTRACT BY PERFORMANCE.

§ 1. Payment.

FORD v. MITCHELL.

15 WISCONSIN, 304.-1862.

Action against defendant as guarantor of an instrument set out in the complaint, or for the price agreed to be paid for a debt sold by plaintiff to defendant. Defense, that defendant was indorser of the instrument sued on and had received no notice of protest. Judgment for defendant. Plaintiff appeals.

DIXON, C. J. The complaint in this action was several times amended. The original does not appear. The first amended complaint was against the defendant as guarantor upon an instrument as follows:

"No. 9092. $176. Janesville City Bank, Wisconsin. Certificate of Deposit. Janesville, April 15, 1858. Mr. Wm. L. Mitchell has deposited in this bank one hundred and seventy-six dollars, payable to the order of himself, 60 days after date, in currency, upon return of this certificate properly indorsed. Interest per cent, if left 60 days. Jas. Fraser,

A. Cash."

The plaintiff was the holder of a debt against the Badger State Bank for $234, which the defendant applied to purchase. A sale was agreed upon at $176, to be paid in money by the defendant. Unable to raise the money, he requested the plaintiff to accept the certificate in lieu thereof, to which the plaintiff assented, provided the defendant would guarantee its payment. The defendant agreed to this, and writing his name across the back of the certificate, delivered it to the plaintiff. The bank refused payment, and the plaintiff caused the certificate to be protested and notice given defendant. Judgment was demanded for the amount of the certificate and interest from the time it

became due. The defendant answered, insisting that he was not a guarantor but an indorser, as alleged in a former complaint, and denied service of notice of protest.

The cause came on for trial before the judge without a jury, when the judge, conceiving that the pleadings did not conform to the facts proved, ordered them to be amended.

The complaint, as amended under this order, is for the $176 agreed to be paid for the debt against the Badger State Bank. It sets out the transaction substantially as before, and avers the organization of the banks under the statute; that the Janesville City Bank was, at the time of issuing the certificate, and has since remained, hopelessly insolvent, and that the plaintiff did not take nor agree to take the certificate, "guaranteed or indorsed or not guaranteed or indorsed," in payment for the debt sold, nor of the $176, the price agreed. The latter allegation is very verbose and awkward, but this is the substance of it. Judgment is demanded for $176 and interest from maturity of the draft. The answer, protesting that there is an entire departure from the cause of action first stated, denies nearly all the material allegations, and especially that notice of non-payment was properly given.

The case made by the complaint is fully sustained by the proof, except the giving of notice of protest. The judge below so found, but supposing the plaintiff was still proceeding upon the guaranty, he held that he was precluded by his own allegations from recovering. He refers to those already noticedthat the certificate was not received as payment for the debt or price and understanding from them that the plaintiff did not agree to accept the defendant's guaranty, he says that it is an end of the action. The last mistake is not very surprising. The intention of the pleader is masked by such an impenetrable thicket of words, that it is hazardous for any one to attempt to get at it. The certificate was produced at the trial.

The case as stated in either complaint is very plain on authority, and it was immaterial which was pursued. The certificate was payable in currency, and therefore not negotiable. See authorities cited by plaintiff's counsel under this point. Protest and notice of non-payment were therefore unnecessary to charge

the defendant. The party writing his name across the back of a negotiable instrument can only be holden as an indorser, and unless the proper steps are taken to charge him as such, he will not be liable. Cady v. Shephard, 12 Wis. 639. But with nonnegotiable paper the case is quite different. The liability there is absolute and unconditional. The party is entitled to none of the privileges of a common indorser. It is a guaranty, an agreement to pay at all events which nothing will discharge except some act which would discharge a surety. Josselyn v. Ames, 3 Mass. 274; Moies v. Bird, 11 Id. 436; Oxford Bank v. Haynes, 8 Pick. 423; Seabury v. Hungerford, 2 Hill, 80; Hall v. Newcomb, 3 Id. 233; Seymour v. Van Slick, 8 Wend. 403; Griswold v. Slocum, 10 Barb. 402; Story on Prom. Notes, § 473, and note. The payee may write out the guaranty over the signature. And in this case it would have been sufficient if the plaintiff had written the guaranty in due form before offering the certificate in evidence.

It being established that the certificate was not received as payment for the debt transferred, it follows that the plaintiff can maintain his action for the price upon surrender of certificate. The principle is elementary, that the taking of the promissory note or bill of the debtor himself, either for a precedent liability or a debt incurred at the time, is no payment, unless it be expressly so agreed; but that, after the expiration of the credit, an action may be maintained upon the original consideration, upon producing the note or bill to be canceled.

The acceptance suspends the remedy during its currency, and the burden of showing that it was received in payment lies on the debtor. Drake v. De Camp, 1 Johns. 34; Hughes v. Wheeler, 8 Cow. 77; Jaffrey v. Cornish, 10 N. H. 505; Puckford v. Maxwell, 6 Term, 52; Clark v. Noel, 3 Camp. 411; Chitty on Con., 660. So, too, of the acceptance by the creditor of the note of a third person for a precedent debt. Prima facie it is no discharge and it is for the debtor to show that it was so intended, unless the creditor makes the note his own by laches, or by parting with it. Tobey v. Barber, 5 Johns. 68; Whitbeck v. Van Ness, 11 Johns. 409; Booth v. Smith, 3 Wend. 66; Bank v. Fletcher, 5 Wend. 85; Smith v. Rogers, 17 Johns. 340; Waydell v. Luer, 3 Denio, 410;

Hays v. Stone, 7 Hill, 128; Frisbie v. Larned, 21 Wend. 450; Vail v. Foster, 4 Coms. 312.

But where the note of a third person is received upon the sale of goods, or for an indebtedness contracted at the time, the rule is reversed. The note will then be deemed to have been taken by the vendor of the goods in satisfaction, unless the contrary be expressly proved; or unless the note be void, and there be fraud and misrepresentation on the part of the vendee respecting it. Wilson v. Foree, 6 Johns. 110; Johnson v. Weed, 9 Id. 310; Whitbeck v. Van Ness, supra; Breed v. Cook, 15 Johns. 241; Reid v. Hutchinson, 3 Camp. 351. In such cases it is regarded as an exchange of commodities that it was part of the original contract that the note should be taken in payment for the goods. If the purchaser indorsed the note, there being no agreement that he shall otherwise be answerable for the goods, he will be liable in the character of an indorser only, and cannot be sued for goods sold and delivered. Booth v. Smith, and Frisbie v. Larned, supra; Whitney v. Goin, 20 N. H. 354; Soffe v. Gallagher, 3 E. D. Smith, 507. The subject is particularly well considered in the last case. The indorsement is, of course, conclusive evidence that the vendor did not intend to take the note at his own risk, or to part with the goods without holding the purchaser liable for the price; but having accepted it, he assumes the obligation incident to such a contract; he must see that the indorser has notice of the dishonor, or the indorser will be released.

But when the purchaser undertakes to answer for the note in some other form, as if he guarantee or agree to guarantee its payment or collection, it seems that the seller may recover in an action for goods sold. Monroe v. Hoff, 5 Denio, 360. In that case it was held that he might do so, though the guaranty was void by the statute of frauds for not expressing the consideration. The attempt to guarantee was considered very strong, if not conclusive evidence, that the note was not received in payment.

All these were cases where the note was negotiable. Whether a different rule would apply to the transfer of a non-negotiable note, on the purchase of goods, as to burden of proof, we need