Gilbert Allen et al. versus Edward Ayres et al.
A, being indebted to B, agrees to give him a note to be discounted at a bank, and accordingly gives one signed by himself as principa) and C as surety, payable to the bank. The bank refuses to discount it or to authorize a suit in the name of the bank 3 whereupon B sues both promisors in his own name. Held, that C, being by the terms of the contract liable only to the bank or their assignees, and there being no evidence of privity between him and B, the action would not lie.
This was an action of assumpsit upon a promissory note, In which “ John S. Johnston as principal and Edward Ayres as surety jointly and severally promise to pay the President, Directors & Co. of the Bedford Commercial bank or order three hundred dollars on demand,” &c.
To maintain the action the plaintiffs proved, that prior to the date of the note Johnston owed them about 300 dollars as *298a balance of accounts, and when called upon to pay this balance offered to procure a good note, which would enable them to obtain the money from the Bedford Commercial bank; that they assented, provided such a note could be obtained as would not require their names. Johnston accordingly made the note in suit, and obtained the signature of Ayres, and delivered it to the plaintiffs in payment of the balance due to them. The plaintiffs presented the note to the bank for discount, but the directors refused to discount it. It was after-wards taken from the bank by the plaintiffs and had ever since remained in their possession.
The plaintiffs also offered to prove that notes of this kind were frequently negotiated at the bank, and that it was common for debtors to make such notes, intending them as accommodation notes, and to deliver them to their creditors, who procured the discount.
It was in evidence that the bank refused to negotiate this note to the plaintiffs, or to suffer them to bring an action in the name of the bank.
The defendants contended that the plaintiffs, not being named in the note, could not maintain this action ; that there was no privity of contract between them and Ayres.
Wilde J., before whom the cause was tried, directed a non-suit, subject Ac.
W. Baylies and Coffin, for the plaintiffs,
cited Marchington v. Vernon, 1 Bos & Pul. 101, note c; Tatlock v. Harris, 3 T. R. 180; Arnold v. Lyman, 17 Mass. R. 400; Bishop v. Hayward, 4 T. R. 470; Lawes on Assumpsit, 333, citing Bayley, 105.
L. Williams and Warren for the defendants.
Parker C. J.
Without evidence that the note was intended by the defendant Ayres for another use and purpose than the words of the promise import, we cannot see how it can by any form of action be converted into a promise to the plaintiffs. It was made payable to the Bedford Commercial bank, and the plaintiffs do not derive a title from that bank.
The evidence tending to show that Johnston procured the note for the use and' benefit of the plaintiffs, and that it was delivered by him to them to enable them to raise money to *299sati&iy his debt, might form good ground of action against Johnston, and perhaps make him answerable upon the note itself; but there is no evidence reported which has a tendency to prove that Ayres made any contract with the plaintiffs, or that he knew the purpose for which the note was given. He has a right therefore to insist upon the terms of the contract, and that he is liable to none but those to whom he made the promise and their lawful assignees.
The nonsuit was therefore rightly ordered.