Clark v. Macon Telegraph Publishing Co.

Lumpkin, J. (After stating the foregoing facts.) There is much conflict and some confusion in the authorities in regard to adding new makers or obligors to an instrument after its original execution. After there has been a complete execution and delivery, and even sometimes before there has been a complete delivery to the obligee, it has been held that such a change is material as rendering all the promisors jointly and equally liable to the obligee as well as among themselves, and as tending to lessen the ultimate liability of the maker or makers. It has been held that the addition of a surety to a complete bond after execution and delivery by the original sureties is an alteration which will discharge the latter. Oneale v. Long, 4 Cranch (U. S.), 60 (2 L. ed. 550); Anderson v. Bellenger, 87 Ala. 334 (6 So. 82, 4 L. R. A. 680, 13 Am. St. R. 46). See the discussion in Taylor v. Johnson, 17 Ga. 521, though the exact point seems not to have been finally decided in that ease. On the other hand, it has been declared that the question is controlled by a consideration as to the character of the change, and whether it is in the body of the instrument or otherwise; the extent to which the instrument has been completed in its execution, and of authority to be implied from the condition of the instrument, 'as to its state of completeness in connection with tli'e relation of the parties. Accordingly it has been held in some decisions that if a surety be added to a promissory note before it has been "fairly launched” so as to become an available security for the purpose for which it was intended, as where such a change was made while the instrument was in the hands of the principal in order to discount it, it will not be considered an alteration which will discharge the original surety. 2 Cyc. 219, 221; Ward v. Hackett, 30 Minn. 150 (14 N. W. 578, 44 Am. R. 187), where it was said: "We have been referred to no case, and have found none, going so far as to hold, where a surety signs a promissory note and intrusts it to his principal, and the principal, while the instrument is still inchoate and has not become effectual as a contract by delivery, procures an additional signer, that this would be a material alteration and release the first surety.” Crandall v. First National Bank of Auburn, 61 Ind. 349; Miller v. Finley, 26 Mich. 249 (12 Am. R 306); McCaughey v. Smith, 27 N. Y. 39; Snyder v. Van Doren, 46 Wis. 602 (1 N. W. 285, 32 Am. R. 739); Graham v. Rush, 73 Iowa, 451 (35 N. W. 518); 2 Dan. Neg. Inst. (6th ed.) § 1389. [282] Without deciding whether Kuhns was or was not discharged, as he is not excepting, and in fact appears not to be a party to the writ of error, relatively to Clark, who alone complains of a refusal to grant an injunction in his favor, certain things should be noted. In the first place, he does not concede that Kuhns is discharged, but denies it, stating in the alternative that, if Kuhns is discharged, he should be likewise discharged. In the second place, if Kuhns was discharged, it must have been either because Clark signed the bond as additional security, or because it had been rejected with Kuhns as the sole surety, and a neW delivery with his consent was necessary. There had been no complete delivery of the bond to the obligee, as was the case in Taylor v. Johnson, supra. The evidence of the deputy sheriff was to the effect that he refused to accept the bond as first tendered, because he did not consider Kuhns a sufficient surety; and that an additional surety was furnished by the signature of Clark. -In his cross-petition, Clark does not deny that he knew that the bond had been tendered with the signature of Kuhns and had been refused without additional security, and that he signed with that knowledge. He introduced in evidence the petition of Kuhns, which alleged that Clark had such knowledge. If he knew this, and signed as an additional surety, could he claim, that his signing operated to discharge Kuhns and likewise operated to discharge himself? The bond is not set out in the record, and it does not appear whether it was joint or joint and several. Clark knew that the purpose of it was to enable his principal to retain possession of the personal property. He aided his principal to accomplish that result. The property may have been destroyed or consumed. Under such facts, Clark could not be held to be free from, liability; and there was no error in refusing to grant the interlocutory injunction prayed for by him. So far as there was any controversy in regard to issues of fact, we must treat them as determined in favor of the ruling of the trial court. Judgment affirmed. All the Justices concur, except Fish, G. J., absent.