97 Ark. 217 | Ark. | 1911
(after stating the facts). The chancery court had jurisdiction. The facts were set forth in detail in the complaint, and the prayer was “for such other relief, general and special, against all of said defendants or either of them, or against them jointly or severally, as the facts may justify and as to the court may seem fit.”
Petty had not in fact signed the note, though the evidence clearly shows that ’he intended to sign it. His communication to Ball saying: “I will sign John Shaw’s note for $250 all right” shows beyond controversy that he intended to sign the note. Ball, acting for Gacking, upon the faith of this communication turned over to Shaw the sum of $125, and Shaw and Petty also obtained a note for $125 which had been previously executed to Gacking. The note was obviously surrendered upon the theory that the subsequent note for $250 signed by Shaw, and which Petty promised to sign, covered the amount of the prior note. There was therefore a valuable consideration for the note sued on, and the communication or written promise of Petty to sign the note should be treated in equity as a part of the note. The court properly considered the case, under the facts, as if it were a suit to reform the note so as to make it the note of Petty as well as of Shaw who had actually signed it. A court of equity, having all the parties before it, could mold the remedy to conform to the rights of the party entitled to relief. Equity “varies its. adjustments and proportions so as to meet the very form and pressure of each particular case in all its complex habitudes.” Black v. Bowman, 9 Ark. 501, 503, 504.
Petty wrote the communication to Ball for the purpose of giving Shaw, the maker of the note, credit with the payee, whoever he might be. It was the same in legal effect as if Petty had signed the note jointly with Shaw, or as if Petty at the time the note was executed by Shaw had put his name in blank upon the back of the note.
Treating that as done which should have been done, Petty must be considered as the joint maker of the note and not as a mere guarantor. Heise v. Bumpass, 40 Ark. 545. See also Lake v. Little Rock Trust Co., 77 Ark. 53; Scanland v. Parker, 64 Ark. 470; Braddock v. Wertheimer, 68 Ark. 423; Good v. Martin, 95 U. S. 95.
It is only by looking at the intent, rather than at the form, says Mr. Pomeroy, “that equity is able to treat that as done which in good conscience ought to be done.” The maxim has been applied in innumerable instances to work out justice, and the facts of this record call for its application again. See Spaulding Mfg. Co. v. Godbold, 92 Ark. 66, and other cases cited in appellee’s brief. The note was kept alive by payments of interest after maturity, and the statute of limitations does not apply. Treating appellant as a joint maker of the note, as he should be, the less said about laches the better for appellant.
Neither Ball nor the bank is liable, for Ball was only acting at the request of appellee without compensation, and practically carried out his instructions and obtained for him what he desired, namely, an instrument that rendered Shaw and Petty liable for the money loaned them by appellee.
The decree is in all respects correct. Affirm.
