145 N.C. 316 | N.C. | 1907
According to the facts as found by the jury at the time the note was presented to appellant for endorsement as surety, it contained the names of Joab Burch and L. E. Burch as principals, and Smith endorsed the same on its back as surety for them as principals, having no knowledge that Joab Burch and L. E. Burch were otherwise than principals, or that the defendant L. E. Burch bore any relation to the note other than as a coprincipal with Joab Burch. The
A person dealing with a negotiable instrument has a right to act upon it as it appears upon the face of it. Daniels Negotiable Instruments, Vol. I, 311. This is also the doctrine laid down in Cragin v. Lovell, 109 U. S., 194. In order to constitute the appellant Smith a cosurety with the defendant L. R. Burch, there must have been a mutual understanding between the parties to that effect. Smith v. Smith, 16 N. C., 173; Cowan v. Baird, 77 N. C., 201; Bulkeley v. House, 62 Conn., 459; Thompson v. Sanders, 20 N. C., 541; Dawson v. Petway, 20 N. C., 531; Sayles v. Sims, 73 N. Y., 552; Sherman v. Black, 49 Vt, 198; 1 Brandt on Suretyship (2d Ed.), sec. 260. According to these authorities, it is plain that his Honor erred in holding the appellant as a co-surety with L. R. Burch.
The cause is remanded, with directions to modify the judgment rendered in accordance with this opinion. •
The costs of this Court will be taxed against L. R. Burch, the appellee.
Modified.