46 Neb. 16 | Neb. | 1895
The plaintiff in this action stated in his petition, in substance, that Al. E. Ewan, as principal, and the plaintiff and defendant, as sureties, of date July 13, 1889, signed and delivered to the Capital National Bank a promissory note in the sum of $300, payable ninety days after date; that the note was not paid at its maturity, but was renewed, and the time of payment extended three several times, the last of which renewals was of date November 17, 1890, and before maturity of the last of the renewal notes the principal, Al. E. Ewan, became insolvent and absconded from or left the state, and on the 26th day of November the plaintiff paid the amount of indebtedness. The relief prayed for was judgment for $150, or one-half the amount paid, with interest, or for contribution as co-surety. The defendant in his answer admitted signing as surety the note declared upon in plaintiff’s petition; denied that there were
“Comes now the plaintiff, and for reply to the defendant’s answer herein filed—
“1. Admits that the defendant signed said note as surety and co-surety with the plaintiff, but denies that said note-was paid by Al. E. Ewan, and alleges that said note was never paid, but was renewed from time to time until the-same was paid by this plaintiff as alleged in his petition, and denies each and every allegation of new matter in said answer set forth.”
The result of a trial in the district court, a jury being-waived, was a judgment for defendant, to reverse which is the object of this error proceeding on behalf of plaintiff*.
It appears from the evidence that the four notes were executed and delivered to the bank and that the second was a renewal or payment of the first, the third of the second, and the fourth of the third. That the first, second, and third were signed by plaintiff and defendant as sureties for Al. E. Ewan, the principal maker; that the fourth was signed by the principal and presented to the plaintiff, who signed and gave it to the principal, who presented it to-defendant to sign; that defendant refused to attach his-signature to it in the relation of surety, but did sign it in the manner we have hereinbefore indicated, after which the note was delivered to the bank and the third of the series
We are cited by counsel for plaintiff to the case of Stump v. Richardson County Bank, 24 Neb., 522, and it is insisted that the rule therein announced is applicable to the facts and circumstances developed in the case at bar and decisive of the questions involved. A careful reading of the ease referred to convinces us that it does not conflict with the rule announced herein. It must be borne in mind that in all cases of this nature the actual intention of the parties to an instrument, or the actual relationship which exists, may be shown, regardless of the form which the transaction may have assumed or which may have been attempted to place upon it, and in the case of Stump v. Richardson County Banh, supra, this doctrine was applied: That there were no facts proved tending to establish a change in the relationship between the parties litigant at the making and indorsing of the first note prior to or at any renewal of it, the change made being merely in a matter of form. In the case at bar the facts show both an intention to change the relationship and an expression of the intention in the form of signature, and to make a change which it was entirely competent and within the power of defendant to make if he so desired. The judgment of the district court is
Affirmed.