Page v. Fowler.

What this reasonable time shall be has never been definitely settled, and may perhaps fluctuate somewhat according to the circumstances of the particular case."

In the case of Pinkerton v. Railroad, 42 N. H. 424, this rule of damages is rejected, and this reason, among others, given for it: "Ir that large class of cases where the articles to be delivered enter into the common consumption of the country in the shape of provisions, perishable or otherwise, horses, cattle, raw material, such as wool, cotton, hides, leather, dye stuffs, etc., to hold that the plaintiff might elect as the rule of damages, in all cases, the highest market price between the time fixed for the delivery and the day of trialwhich is often many years after the breach would, in many cases, be grossly unjust, and give to the plaintiff an amount of damages disproportionate to the injury. For, in most of the cases, had the articles been delivered according to the contract, they would have been sold or consumed during the year, and no probability of reaping any benefit from future increase of prices. So there may be repeated trials of the same cause by review, new trial or otherwise. Shall there be different measure of damages for each trial?"

In every case which I have been able to find, where this view of the subject was discussed at all, some qualification of the rule was insisted upon; and it may be safely affirmed that the unqualified rule laid down in this case has never been recognized as law anywhere, although, of course, there are cases in which the rule has been affirmed without allusion to the qualification; and if the adjudged cases were not so, a rule which would allow one the highest market price for seven or eight years as the measure of damages for conversion of hay-an annual crop, and almost always annually consumed—is too repugnant to our sense of justice and to the purpose the rule was designed to accomplish-indemnity for actual loss to be allowed to stand, especially when the rule itself is not supported even by a majority of the adjudications upon the subject.

In many of the cases it is said that the plaintiff will be allowed the highest price intermediate the taking and the trial, if the suit has been commenced within a reasonable time, and prosecuted without unnecessary delay, and no intimation is made as to what the rule would be if the suit were not commenced within a reasonable time; but it is evident that the question of damages ought to be the same in either case. The time of the commencement of the action or trial would not seem to have any natural or logical con

nection or relation to the question of damages; and the question as to whether a suit was or was not commenced within a reasonable time would rarely, if ever, depend upon any fact which would affect the indemnity to which the plaintiff is entitled. The reasonable time mentioned in the cases cannot mean a reasonable time within which to commence the action, independently of the question of damages. It must mean a time within which it would be reasonable to allow the plaintiff to take the highest market price as the measure of his damages. In other words, the rule deducible from the authorities is, that in cases affecting property of a fluctuating value, where exemplary damages are not allowed, the correct measure of damages is the highest market value within a reasonable time after the property was taken, with interest computed from the time such value was estimated. This is, in effect, the rule established in Scott v. Rogers, where this precise question was more elaborately discussed than in any other case.

The rule thus stated may be somewhat indefinite, but it is certainly not more so than the rule in the New York cases, which have reference to the commencement of the action or its diligent prosecution; and the rule thus stated has this advantage, that what is a reasonable time would always be determined with reference to the question of indemnity; and if the old standard of the value at the time of the taking be once departed from, I can think of no rule more definite which would not be arbitrary and liable to work injustice.

What would be a reasonable time within which to allow the injured party the range of the markets to fix the value, must depend in a great measure upon the circumstances of each case. In very many cases this could easily be fixed by the nature of the article, the use for which it was intended, or the usual course of business upon which value depended. The object of allowing this range at all, as I have said, is because the owner might, and perhaps would, have obtained the price, if he had been allowed to retain the property, and the object will control in fixing the limit allowed for estimating the value. When goods are taken from a merchant he should not be allowed a longer period than it would probably require in the usual course of business to dispose of them, or than it would be reasonable to suppose a business man would expect to hold them for a profit.

As to the annual products of the soil, which are raised for annual

Jones v. Goodwin.

consumption, they are almost universally disposed of by the producers within a few months after they are harvested, and, I may say, invariably consumed, or otherwise disposed of, before the next harvest; and, in my judgment, a longer period than that ought never to be allowed within which to estimate the damages as to such property, at least without some proof that the property would have been retained.

In this case the property was taken by means of a writ of replevin, and, as the proof establishes, was disposed of shortly after it was taken. We are not called upon to inquire whether a different measure of damages should be adopted where the property has been retained and can be returned in specie. The price fixed was during the year 1864-at what period of the year is not definitely settled by the evidence, though most likely it was after harvest of the hay crop, as the value was proven by one of the defendants, who testifies that he sold hay at that price during that year. At all events, the instruction authorized the jury to estimate the value after that time; and as it does not appear that they did not do so, the judgment should be reversed, and it is so ordered.

NOTE. See the case of McLean v. Bovee, 1 Am. Rep. 185, wherein it was held. that one who recovers land in an action of ejectment is entitled to the crops planted after the commencement of that action. REP.

JONES V. GOODWIN, appellant.

(39 Cal. 493.)

Promissory note— Indorsement by one not a party.

If a person not a party to a note places his name in blank on the back thereof before delivery, he is to be regarded as an indorser, and demand and notice are necessary in order to fix his liability.

THIS was an action on a promissory note. The facts are stated in the opinion.

Wm. S. Wells, for appellant.

W. W. Pendegast and L. C. Hays, for respondent.

TEMPLE, J. The defendant Wilcox signed his name in blank upon the back of the note and before the delivery of the same. VOL. II.-60

Jones v. Good win

After the note became due, but too late to charge Wilcox, as indorser, demand was made for payment, and, upon its refusal, notice given to Wilcox. It is claimed that the failure to make demand and give notice in time discharged defendant Wilcox.

A great diversity of opinion exists as to the nature of the liability of one, not being a party, who indorses his name in blank upon a note before delivery. In England he is held to be a guarantor, and his contract is, that the maker of the note will pay at maturity, or, if he does not, the guarantor will. No demand or notice is considered necessary as a condition precedent to fixing the liability of the guarantor, or to the commencement of the action; but a failure to make demand and give notice, together with proof of injury, is pro tanto a defense.

In some states, as in Massachusetts, Vermont and Louisiana, he is regarded as a surety or joint maker of the note, and unconditionally liable. In some states he is held to be a guarantor, and various effects have been given in these states to the contract of guarantee, sometimes being held to be conditional, at other times absolute; and very frequently parol evidence is admitted to explain what the contract really was. In other states, as in New York, Tennessee, Iowa, and, we may add, California, he is held as indorser.

So far back as 1852 the supreme court of this state, in Riggs v. Waldo, 2 Cal. 487, held that the liability of a guarantor, under such circumstances, was that of an indorser; and this case has been affirmed by numerous subsequent decisions. The respondent, however, claims that in these cases no demand and notice whatever had been made or given, and therefore it was only necessary to hold that demand and notice are necessary to fix the liability of a guarantor. We think, however, this is not a proper construction of the decisions. In Riggs v. Waldo the question was as to the nature of the liability of one who, not being a party to a note, indorses his name in blank before delivery; and it was held that "his undertaking is attended with all the liability and all the rights of an indorser stricti juris." It was held that demand and notice was necessary, because his liability was that of an indorser; otherwise no demand and notice would be necessary to fix the liability. nor could they become material except upon the question of diligence where loss has been sustained.

The decisions in this state are substantially in accord with those which hold that one who, not being a party to a negotiable bill,

Jones v. Good win.

indorses it in blank for the purpose of adding to its credit, is an indorser, and in view of the diversity of opinion on the subject we should not now feel inclined to disturb the doctrine, even if it did not meet our approval.

But we think the doctrine of Riggs v. Waldo by far the most reasonable and just. There seems to be no difference between the undertaking of a general guarantor and that of an indorser, except that the former, being a party to the note, his contract is construed by the law merchant, while the undertaking of the latter is construed by the general law of contracts. Each undertakes that the maker will pay the note at maturity; and in case of being compelled to pay it for the principal, each has recourse upon his principal to recover the amount paid, and there is no good reason why they should not have equal opportunities to secure themselves from the assets of the maker. The law merchant has established what is due diligence, and what is a reasonable time within which demand and notice should be made to bind an indorser, and upon principle the same diligence should be used to charge one who has assumed the same responsibility as a guarantor.

Judgment reversed, and cause remanded for further proceedings.

NOTE.-In Massachusetts a person, not a party, placing his name on the back of a promissory note, at the time it is made, is held to be liable as maker. The Union Bank of Weymouth v. Willis, 8 Met. 504; Hawkes v. Phillips, 7 Gray, 284; Draper v. Weld, ls id. 580. In the latter case it was held, that evidence to prove that the party put his name on the back of the note, with authority to fill the blank with a guaranty, was inadmissible against one who took the paper without notice. But if the payee afterward indorse above the signature of the third party, the latter then becomes an ordinary indorser, and his liability cannot be changed by parol evidence. Clapp v. Rice, 13 Gray, 403. See Howe v. Merrill, 5 Cush. 80. If the name be put on after the execution of the note, and as a separate transaction, it is held to be a guaranty. Benthall v. Judkins, 13 Met. 265. See also to same effect Irish v. Cutter, 31 Me. 536.

In Vermont it is held, that if one not a party indorse his name on a promissory note, he is prima facie liable as maker, but the real intention of the signer may be shown. Sylvester v. Downer, 20 Vt. 355; Strong v. Riker, 16 id. 554. See also Perkins v. Catlin, 11 Conn. 213; Clark v. Merriam, 25 id. 576; Jennings v. Thomas, 13 S. & M. 617; Schollenberger v. Nehf, 28 Penn. St. 189; Schneider v. Schiffman, 20 Mo. 571; Watson v. Hurt, 6 Gratt. 633. In New York a person not a party placing his name on the back of a note, before the payee indorses it, is held to be an indorser. Hall v. Newcomb, 7 Hill, 416; Spies v. Gilmore, 1 N. Y. 320; Ellis v. Brown, 6 Barb. 282; Waterbury v. Sinclair, 26 id. 455. See to the same effect Vore v. Hurst, 13 Ind. 551; Wells v. Jackson, 6 Blackf. 40; Jennings v. Thomas, 13 Sm. & M. 617; Clurston v. Sneed, 336; Fear v. Dunlap, 1 Greene (Iowa), 331.

In the following cases a person so indorsing is held to be a guarantor: Camden v. M'Koy, 3 Scam. (Ill.) 437; Cushman v. Dement, id. 497; Carroll v. Weld, 13 Ill. 682; Klein v. Currier 14 id. 237; Webster v. Cobb, 17 id. 459; Fegenbush v. Lang, 28 Penn. St. 193; Watson v. Hurt, 6 Gratt. 633; Beckwith v. Angell, 6 Conn. 315. See also Rsom v. Sherpood, 26 id. 437, and Rey v. Simpson, 22 How. (U. S.) 341. In all the states, except New York and Massachusetts, evidence of intention is admissible to rebut the legal preumption. REP.