SUPERIOR FINANCE CORP. v. McCRANE, 111 N.J.L. 399 (1933)

168 A. 380

SUPERIOR FINANCE CORPORATION, A CORPORATION, PLAINTIFF-APPELLANT, v. JOSEPH M. McCRANE, DEFENDANT-RESPONDENT.

Court of Errors and Appeals.Submitted May 26, 1933 —
Decided September 27, 1933.

In an action on a bond or note, proof of the instrument casts upon the defendant the obligation to show that it has been paid; but in an action upon a contract of guarantee the plaintiff must show damage.

On appeal from the Passaic County Circuit Court.

For the plaintiff-appellant, Feder Rinzler.

For the defendant-respondent, Abram A. Lebson.

PER CURIAM.

The plaintiff appeals from a judgment of nonsuit. The action was upon a written guarantee of a conditional sales agreement securing a note therein referred to. The plaintiff offered in evidence the conditional sales agreement and the written guarantee, and rested. The note was not offered, nor was there proof of the default in the contract of guarantee. The nonsuit was proper.

In an action upon a bond or a note, proof of the instrument casts upon the defendant the obligation to show that it has been paid. But in an action upon a contract of guarantee the plaintiff must show damage.

The judgment is affirmed.

For affirmance — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, DILL, JJ. 15.

For reversal — None.

Page 400