The note sued on is written in the singular number, but signed by both defendants.
Parol evidence, under exception, was admitted to show that defendant Coun signed the note as surety, and that fact was known to Kritzer.
The evidence did not tend to alter or vary the terms of the note, but merely to show the relation of the parties, and hence the exceptions were properly overruled by the Court. (13 Mass. 131.)
When one of two promissors annex the word " surety" to his signature, the description does not alter the legal effect of the contract, but merely indicates the relation in which the parties stand to each other, and notice of such relation to the holder. But the fact of such relation and notice, if to the holder, may be proved by extrinsic evidence. It is not to affect the terms of the contract, but to prove a collateral fact, and rebut a presumption. (21 Pick. 195.)
This Court has heretofore recognized the principle here contended for, doing away with all nice distinctions, and fixing the liability of endorser or surety without regard to where his signature is written, upon the common sense principle that when his liability is secondary, that fact is known to the holder, he is entitled to all the rights of an endorser.
JUDGES: Burnett, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BURNETT, Judge
This was an action upon a promissory note executed by defendants. The defense set up by Coun, was that he was only a surety for Mills; that plaintiff neglected to bring suit in due time, and that no notice of demand and protest was given. Mere neglect to sue is no defense. (5 Cal. 173.) The defendant Coun was not entitled to notice. The note was signed " John Mills," " David Coun."
There was nothing upon the face of the note to show that Coun was a surety, and this case does not fall within the doctrine laid down in the cases of Riggs v. Waldo , 2 Cal. 485; Lightstone v. Lawrence , 4 Cal. 277, and Bryan v. Berry , 6 Cal. 394.
Judgment reversed, and cause remanded, and the Court below will render judgment for plaintiff.