68 Pa. 237 | Pa. | 1871
The opinion of the court was delivered,
The first error assigned embraces the subject of three bills of exception, and is not assigned according to rule. We may remark, however, that the court did not refuse to hear the declarations of George Seitz, the principal on the note, as against himself, but only as to his co-defendants. Clearly, there was no error in this, as they could not be affected by his declarations without showing a partnership relation, of which there was no proof. The impropriety of receiving these declarations against the other defendants is shown by the very testimony itself of George Seitz, given by the plaintiff afterwards, in which the fact offered to be proved by his declarations is explicitly contradicted. The second assignment of error is liable to the same objection. The question was general, and if answered as put, would have affected the co-defendants; while the witness was permitted to state that George Seitz did not tell him they were to pay interest on the note. The evidence is clear that George Seitz was the principal, and the other defendants sureties, and that the sureties were not actors, the whole transaction being between the plaintiff and George Seitz; the others merely signing the note to secure repayment of the loan. There is no evidence that they were parties to the making of the loan, or participated in the slightest degree, until they signed the note. The transaction depends wholly on the note as it regards them. They could not be affected, therefore, by the understanding of the plaintiff with George Seitz, or even with John A. Seitz, one of their number.
The third and fourth assignments involve the principal question in the cause. According to the plaintiff’s testimony, about two months after the note in suit was delivered to him, George Seitz came to his house. He mentioned to Seitz that the note was non-interest bearing, and Seitz said, “You just add the words ‘Int., payable semi-annually,’ and it will be all right.” He did so, in Seitz’s presence. He also states that the agreement between him and Seitz, at the time of making the loan, was, that Seitz should pay him 12 per cent, interest, and that in two or three weeks after the note was given, Seitz handed him $240, the bonus part of the interest or six per cent, on $4000, the principal of the loan. The alteration of the note by the addition of interest was a conceded voluntary act on part of the plaintiff, though not fraudulent or wrongful as to George Seitz, the principal, and the question is, whether this act avoided the note as to, the sureties. The case is, we think, ruled by Neff v. Horner, 1.3 B. F., Smith 327, which is in turn supported by the additional authorities cited
The sixth, seventh and eighth errors may be considered together. There is no evidence that the loan itself was made to all the drawers of the note directly either as principals or sureties, or that any undertaking was assumed by the sureties, other than the promise contained in the note itself. Nor did they receive any of the money lent by the plaintiff. Their liability arose, therefore, wholly upon the note, and not upon any express or implied promise, outside of it, to repay the money lent. It is evident, therefore, there was no ground upon which the court could submit to the jury the right of the plaintiff to recover jointly from all of the defendants the money lent, independently of the instrument by which the sureties bound themselves to pay it, and on that, as an altered writing, we have seen there can be no recovery. Upon the whole case we discover no error, and the judgment is therefore
Affirmed.