Tabor v. Thrasher

Kish, J. 1. While a petition in an action againstA. andB., upona promissory note purporting to bean instrument which they had executed at the same time, A. by signing the paper on its face and B. by writing his name on the back thereof, may be amended by striking the name of A. as a defendant, such petition can not properly be so amended as to make the same allege that when the note was originally executed it was signed by A. alone, B. not then being a party to it; that subsequently the contract between A. and the payee evidenced by the note was rescinded and A. released from all liability thereon; and that thereupon B. wrote his name on the back of the note, thereby intending to make an entirely new note evidencing his sole and individual promise to the payee. An amendment of this kind would set forth a new cause of action; for its effect would be to convert a s.uit upon an undertaking entered into by two persons at one time into a suit upon another and entirely distinct undertaking entered into by one of these persons at a different time. 2. It was, however, in such a case, erroneous to dismiss the plaintiffs’ petition upon the ground that B. appeared, from the petition, to be a surety upon the, note, and the suit could not proceed against the surety after the same had been discontinued as to the principal, the note being in form a joint and several undertaking. 3. It results from the foregoing that the court erred in dismissing the plaintiffs’ petition as amended. Judgment reversed. All the Justices concurring, except Lewis, J., absent.