99 Ark. 319 | Ark. | 1911
(after stating the facts). It is contended that appellant was not bound to the payment of the note as surety, he having been induced to sign it by fraudulent and false representations of C. L. Sloat that he was the principal therein and because said note was negotiated and used without procuring the signature of one other person as surety thereon in direct violation of the agreement, which induced him to become a surety, that this would be done.
It was not alleged in the answer, nor was there any proof tending to show, that the payee in the note who loaned the money thereon had any notice or information of any representations made appellant as to who >was the principal therein, and no duty was imposed upon the obligee to seek the sureties and ascertain whether they had been misled to become such. It is the business of the surety to ascertain who the true principal is, and any false representations made to induce him to sign the obligation as to the principal, if unknown to the obligee, will not defeat his right to recover against the sureties. Stiewel v. American Surety Co., 70 Ark. 512; Doan v. New Orleans, etc., Tel. Co., 11 La. Ann. 504; Jacobs v. Curtiss, 67 Conn. 497, 35 Atl. 501; 32 Cyc. 64.
2. The surety signed the note as a joint .maker in fact, and left it in the hands of his principal therein, or in any event with the agent of his principal who procured him to sign it, to be delivered only on condition that .it be first signed by another surety, and, it having been delivered ,in violation of this agreement to the payee who had no notice of such agreement, the suretjr is nevertheless bound to its payment. Tabor v. Merchants Natl. Bank, 48 Ark. 459; North Atchison Bank v. Gay, 21 S. W. (Mo.) 479; Dair v. United States, 16 Wall. 1; Brandt, Suretyship & Guaranty, § 457.
The note was an ordinary negotiable promissory note signed by the parties, with nothing whatever about it to indicate to the •payee that it was not what it purported to be er that the liability of the signers was other than or different from what it appeared to be on the face of the paper, and the question as to whether the payee had notice of the agreement not to deliver it until another surety had signed, as alleged, was properly submitted to the jury, who found against appellant. The evidence is sufficient to sustain the verdict and attachment, and no error was committed in refusing to give appellant’s requested instructions.
The judgment is affirmed.