Stewart v. Behm

Per Curiam. The representatives of a deceased obligee are discharged at law, and consequently in equity, where the decedent was a surety, only when the obligation is a joint one ; and here they are sued severally. The remaining point is equaliy simple. In Barrington v. The Bank of Washington, 14 Serg. & Rawle 422, it was held, that to erase the name of a joint oblige® without the consent of his fellows, avoids the bond, because it increases the burthen of their individual responsibility when divided among each other. For the same reason a representation by the obligee that the bond would be executed by others, would, if not carried into effect, be fraudulent, on the principle of Miller v. Henderson, 10 Serg. & Rawle 290, where parol evidence was admitted to show that the obligor executed the bond under an assurance of the obligee that the object was not to charge him, but to comply with a formality. But where the obligor has acted with good faith, what has he to do with the mistakes or misconceptions of the obligee Í Here the principal obligor signed the name of his firm; and the point of defence is rested on an as [357] sumption of the fact that the surety supposed the signature would bind both the parties. But his mistake was in a matter of law which he was bound to know; and even had it been in a matter of fact, which was the basis of his motive for becoming bound, it would not avail him, unless it were induced by the misrepresentation of the obligee. Here it seems the obligee was not present at the act of execution ; and as there is no pretence of misrepresentation or concealment by him at any time, there was no colour for the defence. Judgment affirmed.