Smith v. Harrell

Buchanan, J. Plaintiff sues defendant Upon the following note : “ Amite County, July 1st, 1856. “ $1260 33. Twelve months after date, for value received, we promise to pay G. W. Smith, or order, twelve hundred and sixty dollars and thirty-three cents, With eight per cent, interest from date until paid. “ Mills, Cleveland <& Co. “II. R. HarrellP TheJpetition alleges that defendant signed the note as surety for thfe othei1 signers, Mills, Cleveland <& Co., and that he is therefore bound to plaintiff in solido for its payment. - Plaintiff had judgment; and defendant presents the case to us, by appeal, upon the single point made by a peremptory exception filed by him in the Court below, “ that plaintiff is estopped by the allegations Of his former original petition in the suit of G. W. Smith v. Hawkins et al. from alleging in his present suit that .this defendant is bound as security on the note sued on.” 1 Tt .appears from the evidence that plaintiff had previously sued defendaht and another’ party, upon this same note, in another action, which terminated by a non--'suit. In the-petition filed in that action, plaintiff did not specially allege, as he h'as dohe.in the present case, that defendant signed the note as surety of the other signer ; ¿but simply declared upon the note as signed by defendant and Mills, "Cleveland & Có.;; and due by the signers in-solido. TÜéáe- allegations of the petition in the first suit are not a bar of the present demand?, That suit is at an end, by a judgment (nonsuit) which left the parties in the same relative position in'which they were before it was instituted. But-supposing even that the present petition was before us in the form of an amendment of the first petition, and in thesame suit, it would present no such inconsistency of pleading as would exclude it. The first petition claimed judgment in solido against several makers of a note, which in its form was merely a joint obligation. But the amendment would have come in aid of the relief sought in the original petition (to wit, a judgment in solido against Harrell) by pleading an intention to that effect, on the part of Harrell, at the time of affixing his signature. Indeed, the counsel of the defendant admits in his argument before this Court, that a party, whose name appears as a maker, may be sued as a surety, and that plaintiff may explain the face of the note by parol proof to- show that the party who is prima fade a maker, is in reality a surety. Judgment affirmed, with costs.