On appeal from the District Court of the city of East Orange.
For the appellant, Philip Mandelbaum (Herman Marx, of counsel).
For the respondent, David S. Bingham (William M. McConnell, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is the plaintiff's appeal from a judgment of the District Court of the city of East Orange rendered by
the trial judge, sitting without a jury, in favor of the defendant.
A resume of the litigation below will help to clarify the controversy in the instant case. The plaintiff conducts a loan business under our "Small Loan act." Pamph. L. 1932, ch. 62, p. 94. On January 2d, 1933, a person representing himself as Roosevelt Arnold, made application to the plaintiff for a loan of $300. He presented a note for said amount purporting to be signed by himself and witnessed by one Raymond Friedman; it appears to be endorsed by Chris Acocella and Samuel Jacobus, Jr. Plaintiff first brought suit on the note against the purported maker and endorsers. Defendants pleaded that their respective signatures were forged. At this trial, it was conceded that the signatures of Arnold and Jacobus, Jr., were forgeries; as to Acocella, the case was tried and his signature was proved to be genuine; a judgment was rendered against Acocella and in favor of the plaintiff. Thereafter Acocella obtained a rule to show cause why a new trial should not be granted. The rule was made absolute; a new trial was granted.
On the retrial, the first state of demand, by concession of counsel for the respective parties, was abandoned and a new state of demand was filed. In this demand plaintiff sought to hold the defendant on the allegation that he "guaranteed and warranted payment of a note in the sum of three hundred dollars, dated January 12th, 1933, as and when the same shall become due * * *." On the face of the note it was provided, inter alia, "if default be made in any of the aforesaid payments [set forth in the note] then the entire balance * * * shall, at the option of the holder, become instantly due and payable, and suit may be brought by the holder of this note against any one or all of the undersigned." On the back of the note directly over defendant's signature appeared the following: "For value received we and each and all of the undersigned guarantors hereon, jointly and severally guarantee and warrant payment of the within note as and when the same shall become due * * *. In case of default, suit may be brought by the holder of this note at its option against any one or all of us." The forged signatures of
Arnold and Jacobus, Jr., were also conceded at this trial. The result was again a judgment in favor of the plaintiff and against the defendant. The latter then obtained a rule to show cause why the judgment as aforesaid should not be set aside and the court came "to the conclusion that inasmuch as the guaranty in the instant case was given to the party to whom the instrument guaranteed was given, and the transaction being contemporaneous, that there was but one contract and that the note being invalid there can be no recovery on the guaranty." Accordingly their judgment in favor of the plaintiff was set aside and judgment rendered in favor of the defendant.
Appellee contends (1) that the question as to whether the contract upon which the suit was based is one of suretyship or guaranty was not raised below nor is it embraced within the specification of determinations with which appellant is dissatisfied in point of law; (2) that the guaranty was collateral and secondary to the note which was the primary obligation; that since the principal obligation was invalid, the contract ...