Roberts & Crain v. Jenkins

Martin, J. delivered the opinion of the court. The plaintiffs are appellants from a judgment, in which they have recovered one half only of the amount of the note, on vt$iich the suit is brought. It was signed by another person [454] and the defendant, and is therefore on its face a joint note, or-obligation> The plaintiffs and appellants allege, that the defendant signed the note as surety. To establish this, they propounded an interrogatory, which the defendant failed to answer, and it must therefore he taken pro confesso. Although on the face of the note, judgment should have been given for the defendant’s virile part only, the circumstance of his having entered into a contract of suretyship, entitles the plaintiffs to a judgment ¿gainst him as a surety, notwithstanding the instrument, which is the evidence of the debt, represents him as a joint debtor, and as such liable for only half of the debt. The defendant, by failing to answer the interrogatories, has admitted that he is a surety. He has not said, that he is surety only for a part; and we must consider him as a surety for the whole. The District Court, in our opinion, erred in restricting its judgment to one-half of the amount of the note! It is therefore ordered, adjudged and decreed, that the judgment of the District Court be annulled, avoided and reversed: and proceeding to give such judgment as in our opinion ought to have been rendered in the court below: It is ordered, adjudged and decreed, that the plaintiffs do recover of the defendant two thousand four hundred and fifty-nine dollars, and eleven cents, with interest thereon at the rate of 5 per cent, per annum, from the 3'0th November, 1840, until paid ; and costs in both courts.