Bills and Notes. Surety. Evidence, Extrinsic affecting writings. When a principal and sureties sign a promissory note by which they "jointly and severally promise to pay" the amount stated, each of the sureties is liable individually as well as jointly and may be sued separately.
If, in an action against a surety on a promissory note payable on demand for a balance due thereon, it appears that for nearly five months the note was at a bank awaiting payment and there is evidence warranting a finding that the defendant was notified of a demand for the payment of the note at the place where it was payable, a verdict against the defendant for the amount unpaid on the note is justified, even if proof of a formal demand is necessary, which was not decided.
In an action by a savings bank as the payee of two promissory notes payable on demand against a married woman who signed both notes as a surety, if the treasurer of the plaintiff has testified that he wrote to the defendant a certain letter stating that the plaintiff accepted a proposition to wait for the payment of the balance due on the notes until certain dates when certain amounts named should be paid, the witness may be asked by the plaintiff what was meant by the proposition and may testify that the proposition referred to was made by the defendant's husband in her behalf, thus explaining the ambiguity in the letter and showing that the proposition accepted was not an arrangement with the principal to extend the time of payment without the consent of the defendant which might discharge her as surety.
KNOWLTON, C.J.
The promissory notes declared on were signed by the Hampshire and Worcester Street Railway Company as principal, and by the defendant and two other persons as sureties. In each of them the signers "jointly and severally promised to pay" the amount stated. The defendant, therefore, became liable individually and severally, as well as jointly, for the payment. Hunt v. Adams, 5 Mass. 358. Hunt v. Adams, 6 Mass. 519, 523. Union Bank v. Willis, 8 Met. 504, 510. In this particular the fact that she signed as a surety does not affect her primary liability to the holder of the notes, but only shows the relations of the makers to one another.
The notes were payable at the Fourth National Bank, Boston, and, from a time about three months after the delivery of them, they were at this bank for nearly five months, awaiting payment. Copies of letters written by the plaintiff to the defendant were put in evidence, which well warranted a finding by the jury that the defendant was notified of a demand for payment of the notes at the place where they were payable. Without intimating that any formal demand was necessary, this was ample to justify the verdict against the defendant for the amount remaining unpaid.
The oral testimony of the plaintiff's treasurer was competent to explain an ambiguity in the letter of November 19, written to the defendant. Without explanation, the language of the letter might suggest a possibility of an arrangement with the principal to extend the time of payment without the consent of the defendant, which might discharge her as a surety. The testimony tended to show that the proposition referred to was made by the defendant's husband in her behalf.
The case rightly was submitted to the jury.
Exceptions overruled.