Grafton Bank v. Kent

The opinion of the court was delivered by Richardson, C. J. It has been doubted, whether in an action of debt upon a bond in which the obligors are bound jointly and severally, a court of law could decide upon an averment that one of the obligors put his seal to the instrument as a [223] surety, when it did not appear to be true on the face of the bond. 1 Gall. 32, Hunt v. The United States; 2 Vesey, jun. 540; 7 Johns. 337. In many of the cases, where the rights and liabilities of sureties have been discussed, they have appeared as sureties upon the face of the instrument. In some instances it has been expressly stated that they were sureties. In other cases it has appeared by the nature of the contract. 3 Binn. 520, The commissioners v. Ross; 5 B. & A. 187, Davey v. Prendergrass; 3 Will. 530, Wright v. Russell; 2 Pick. 223; 1 D. & E. 291, note; 9 Mass. Rep. 267; 2 Caine’s cases, 57; 2 Saund. 411; 1 D. & E. 287, 3 East, 484; 4 B. & P. 34; 5 ditto, 174; 7 Johns. 332; 1 B. & P. 419; 10 East, 34; 3 N. H. Rep. 231; 15 Johns. 433; 5 B & A. 187; 6 Taunt. 379; 10 Johns. 587; 17 ditto, 384; 1 Taunt. 159; 2 B. & P. 61; 15 East, 617; 3 B. & P. 363; 5 Taunt. 319; 4 ditto, 456; 3 Meri. 272, Samuel v. Howarth. In the case of Orme v. Young, 1 Holt, 84, the defendant pleaded that he entered into the bond as a surety, but it does not appear whether it. v as apparent on the face of the instrument that lie was a surety. The same remark is applicable to the case of Paine v. Packard, 13 Johns. 174. In the case of Townsend v. Riddle, 2 N. H. Rep. 448, the character of the surety was not disclosed on the face of the contract ; but the question whether it was competent to Riddle to show that he was in. fact a surety, was not settled in that case. The case of Stratton v. Rastall, 2 D. & E. 366, was assumpsit brought to recover back money which had been paid for an annuity bond made by Rastal and one Avarne, and which had become void. It appeared that Rastal and Avarne gave a joint receipt for the money, but Ras-tal showed that he was only a surety and received no part of the money, and was held not to be liable. But in that case the bond was void. [224] The case of Wells v. Girling, 8 Taunt. 737, is more directly in point. To support a money count the plaintiff offered in evidence a note of which the defendant was one of the makers. The defendant showed that there had been no antecedent dealings between him and the plaintiff, and that he signed the note as a surety only, and this was held to be a good answer to the action. If in such a case it was competent to the defendant to show that he was only a surety, it is difficult to imagine any good reason why a defendant should not be permitted to do the same thing when material, where the count was upon the note itself. If it was competent to the defendant there to say u I am only a surety and if you recover the money of me at all you must recover upon the contract I made it must be very strange if in this case the defendant is not at liberty to say “ I am a surety and you have so conducted towards me that I am by law discharged.” And we are on the whole of opinion that the rule is, where a maker of a note, who has signed as a surety, does not appear on the face of the paper to be a surety, he is to be considered and treated as a principal with respect to all those, who have no notice of his real character, but that wherever it is material, a defendant may show by extrinsic evidence that he made the note as a surety only, and that it was known to the plaintiff that he was only a surety. Verdict set aside, and a verdict entered for the defendant and judgment.