. Walton, 9 N. Y. 571; Hardy v. Pilcher, 57 Defendant, with his plea, filed an affidavit Miss. 18, 34 Am. Rep. 432; Byington v. Simp-setting forth "that the note, a copy of which son, supra. See MaGee v. Atkinson. 2 Mees. & W. 440; Haile v. Peirce, 32 Md. 330, 3 Am. Rep. 139; Sumwalt v. Ridgely, 20 Md. 114. Evidence is admissible to prove authority to bind the company by a signature of the agent where the note was, "I promise," signed, "A. B., Agent for C. D. Co.," so as to relieve him of personal liability. Hovey v. Magill, 2 Conn. 680. An agent signing a note "A. B., Sec'y," may show when sued that the note is a corporation debt and that it was the intention to hold the company and not the agent. Drake v. Flewellen, 33 Ala. 106. And parol evidence is admissible in an action by the payee against the signer of a note reading, "We promise," signed, "A. B., Treas. of C. D. Church Fund," to prove the failure or want of consideration or that the note was given for the debt of another. Sumwalt v. Ridgely, 20 Md. 107. And is admissible in a suit against the signer of a note by the payee, to show that the note was given for the debt of another or failure of or want of consideration, where the note is, "I promise," and is signed, "A. B., Pres't. C. D. Co." Wyman v. Gray, 7 Harr. & J. 409. A stipulation took the place of evidence and showed who was intended to be bound, where a note was, "I, treasurer of C. D. Co., promise," signed, "E. F., Treasurer of C. D. Co., and the signer was not individually liable. Mann v. Chandler, 9 Mass. 335. The doctrine of the liability of the signer in the case of Mann v. Chandler, supra, has been denied in later cases in Massachusetts especially in Barlow v. Congregational Soc. in Lee, 8 Allen, 460; and in Tucker Mfg. Co. v. Fairbanks, 98 Mass. 101. Parol evidence is admissible, where the note is, "We jointly and severally promise," signed, "A. & B. for C.," to prove that "A." and "B." were authorized to execute such note as the agent of "C." Rice v. Gove, 22 Pick. 158, 33 Am. Dec. 724. And is admissible to show who were intended as obligors, in a note, where five assignees of A. in trust for his creditors appointed two of their number to transact the business, and these two authorized "A." to act "for the assignees" and he gave a note, "I promise," signed, "A. for the Assignees." Paige v. Stone, 10 Met. 160, 43 Am. Dec. 420. And is admissible to show the character and relation of the parties signing a note which read, "We promise," and was signed "(A. B., E. F., G. H., I. J.)” “Trustees of C. D. Church" with corporate seal attached, and that it was intended to bind the corporation and not the signers. Hood v. Hallenbeck, 7 Hun, 362. is attached to the declaration in said cause, and served upon said deponent, with a copy of said declaration, is not the note of this deponent, defendant as aforesaid; and he denies the same and the execution thereof, and says that he, said defendant, is not indebted to said plaintiff upon said note, nor for any part thereof, nor is he indebted to said plaintiff in any sum whatever, nor in any manner whatever." Upon the trial defendant offered to show that in 1884, before plaintiff had any dealings with defendant, plaintiff was informed that defendant was carrying on business as the agent of Maggie G. Winegar, and was not doing business for himself; that business relations were then established be 19 note, against the signer, to show that it was intended to be the contract of the principal and not that of the agent, and that it was authorized and was signed as agent. Brunswick-Balke Collender Co. v. Boutell, 45 Minn. 21; Peterson v. Homan, 44 Minn. 166. Parol evidence is admissible in a suit against signer of a note, where the signature is as "agent" and he acted for and intended to bind his principal, and it was so understood by the creditor, and the note is held by party with notice. Deering v. Thom, 29 Minn. 120. In an action against the signers on a note, "We promise,” signed, "E. F., Cashier," "A. B., Pres't.." under a general denial, where the lower court refused to allow the note to be offered in evidence against the defendants, the appellate court says: "If it was susceptible of explanation that should have come from the other side, and the note gave a prima facie case for recovery and plaintiff must succeed unless his right is defeated by proof of the defendant. Fitch v. Lawton, 6 How. (Miss.) 371. Parol evidence is admissible to show who was intended to be bound, where the signer is sued on a note, "I promise," signed, "A. B., Treas'r of C. D. Co.," and there was no consideration passing to the signer. Smith v. Alexander, 31 Mo. 193. And is admissible to show the intention of the parties and that the principal owes the debt, in an action against the signer of a note, "I promise," signed, "A. B., Gen. Manag. & Supt. C. D. Co." "E. F.," where the plaintiff had full knowledge when be took the note. Gerber v. Stuart, 1 Mont. 172. The surrounding circumstances may be proved in an action against the signer of a note, so as to show that it is not his debt but that of the principal, where it reads, "I promise," "for the use of C. D. store," and is signed, "A. B., Treasurer." Dow v. Moore, 47 N. H. 419. Evidence was received to show authority and purpose, in the execution of a note, where the signer was sued and claimed that it was intended to be the debt of his principal, and the note read, "We promise," and was signed, "C. D. Co.." "A. B., Manager." Chase v. Pattberg, 12 Daly, 171. As between the original parties, parol evidence is admissible to remove the ambiguity, where it is doubtful whether the principal or agent is liable. So a note, "We promise," signed, "A. B., Prest.," "E. F., Sec., C. D. Co.," "Company seal [L]." was shown to be a corporation note where such was the intention of the parties. Guthrie v. Imbrie, 12 Or. 182, 53 Am. Rep. 331. In an action against the signers of a note reading, "We promise," signed. "A. B., E. F., G. H., Directors of the C. D. Company," where the defendants pleaded a mistake and the intention to Parol evidence is admissible to show that the signers of a note acted as agents of a school district, where they make a proper defense and are sued individually. Sanborn v. Neal, 4 Minn. 139, 77 Am. Dec. 502; Fowler v. Atkinson, 6 Minn. 578; Bingham v. Stewart, 13 Minn. 106, 14 Minn. 214. And is admissible in an action by the payee of a make a note only for the company, evidence ap tween plaintiff and said Maggie G. Winegar: gar; that the note was given for due-bills and that said business relations continued from goods furnished by plaintiff to Maggie G. the early part of 1884 to and including the Winegar, and such due-bills and goods were year 1887, and embraced many transactions by plaintiff charged to said Maggie G. between plaintiff and Maggie G. Winegar; Winegar on the books of plaintiff; that the that many instruments were made between taking of these notes did not in the least the parties, which were signed exactly as the change the character of the indebtedness; and note sued upon is signed, and that this form that defendant never received any benefit or of execution had come to be recognized and consideration for said note. The court readopted between the parties as binding fused to admit the testimony, and directed Maggie G. Winegar; that during that time a verdict for the plaintiff. no business was transacted by the defendant The clear weight of authority is that the in his individual capacity, and all the busi- promise in the present case is prima facie ness done was that of his principal, and the promise of William S. Winegar, and, as known and understood to be such by plain-between one of the original parties and a tiff; that the said note was given and ac- third party, the addition of the word 'Agent" cepted as the obligation of Maggie G. Wine- is not sufficient to put such third party upon pears to have been allowed but was insufficient to sustain the defense. Courtauld v. Saunders, 16 L. T. N. S. 562. The foregoing cases are uniform with the doctrine in the main case. While, on the other hand, the contrary rule has been adopted in many cases; but on a close examination it will be found that it was so held in many of these cases on account of the manner of presenting the defense in the issues of the pleadings. As on demurrer to a petition, or on an answer not presenting sufficient grounds to overcome the presumption held in such cases that it was the contract of the agent. In attempting to charge the principal in a note reading, "I promise," signed, "A. B. Prest. of C. D. Co.," the liability might be established by evidence of agency, but in an attempt to charge the signer with individual liability the note is construed on its face. Haverhill Mut. F. Ins. Co. v. Newhall, 1 Allen, 139. Parol evidence is inadmissible to show that a party signing a note, "A. B., Trustee," was not to be personally liable, but that it was to be paid out of trust funds. Conner v. Clark, 12 Cal. 168, 73 Am. Dec. 529. | B., President, E. F., Secretary, G. H., Director," cannot show that it was intended to be an obligation of the district for insurance on a schoolhouse. American Ins. Co. v. Stratton, 59 Iowa, 696. Extrinsic evidence is not admissible in an action against the signer of a note reciting, "We promise." signed, "A. B., Treas'r. C. D. Co.," as the note is on its face that of the signer, and there is no estoppel although the payee had sued the company but had not taken judgment. McClure v. Livermore, 78 Me. 390. And evidence is inadmissible to show the understanding of the parties was that a note was the principal's and not that of the signer, in a suit by the payee against the signer, where the note reads, "I promise." signed, "A. B., Treas. C. D. Parish." The court said if there had been no consideration between the parties it would be allowed but this note was given as a renewal of a note by his predecessor for lumber sold the parish. Sturdivant v. Hull, 59 Me. 172, 8 Am. Rep. 409. And is not admissible to show the note is that of the principal where the agent was sued and the note was "We promise," and was signed, "A. B., Treasurer of C. D. Association," notwithstanding the use of the pronoun "we," as there is no difference between "I promise" and "We promise." Mellen v. Moore, 68 Me. 390, 28 Am. Rep. 77. Extrinsic evidence is inadmissible, where a note Parol evidence is inadmissible, where the signers are sued individually and the promise is joint and signature is, "A. B., President, E. F., Secretary," although the resolution of the company under seal is attached to the note. The defendants not verify-read "We promise to pay" and was signed “A. B.,” ing their denial admitted the execution of the note, and a cross-bill against the corporation asking to have the obligation reformed because not as intended was properly refused. San Bernardino Nat. Bank v. Anderson (Cal.) Feb. 8, 1893. "E. F.,” “G. H.," "I. J.," "President and Directors of C. D. Company." Rendell v. Harriman, 75 Me. 497, 46 Am. Rep. 421. Extrinsic evidence that the signer of a note was the trustee of a railroad company, and while sole If the paper is free from ambiguity the construc-manager took up a note of the corporation from tion of it is on its face and should be by the court. So a note, "I obligate myself," signed, "A. B., Agent, C. D. Company," is to be construed on its face as the contract of the agent. Faw v. Meals, 65 Ga. 711. A note, "We promise," signed "A. B.," "E. F.," "G. H.," "Trustees C. D. Church," cannot be varied by a defense to allow parol evidence, shifting the liability to the principal. Hayes v. Brubaker, 65 Ind. 27. And evidence is inadmissible to show that the note was that of a lodge and not that of the individuals signing where it reads, "We promise," and is signed, "A. B., E. F., G. H., Trustees C. D. Lodge, 87, F. & A. M." Williams v. Lafayette Second Nat. Bank, 83 Ind. 237. a bank and gave the note sued on to the cashier of the bank constituted no defense where the note was, "I promise," signed, "A. B., Trustee C. D. Railroad," indorsed "A. B., Trustee," and did not put the holder on inquiry. Fiske v. Eldridge, 12 Gray, 474. The liability of an unnamed principal on a negotiable instrument cannot be shown by parol evidence. In other simple contracts the rule is different. So where a note read, "I promise,” and was signed, "A. B., Agt.," it was held to be the note of the signer. Williams v. Robbins, 16 Gray, 77,77 Am. Dec. 396. Parol evidence is inadmissible to show the intention and agreement of the parties, that the note was for the principal, in a suit by the payee against the signer, where it read, "I promise," and was signed. "A. B., Pres. and Treas. C. D. Co.," and the answer is a general denial and no consideration. A written contract cannot be varied by parol testimony. Davis v. England, 141 Mass. 587. Parol evidence is incompetent to vary the effect The signers of a note, "We promise," signed, "A. of a note and show that the intention was to bind And is inadmissible to change the personal liability of the signer of a note, reading, "We promise," signed, “A. B., President school board," "E. F., Secretary school board." Wing v. Glick, 56 Iowa, 473, 41 Am. Rep. 418, cited in note to 37 Am. Rep. 142. inquiry. The question pere, however, is indicating representative character, while it whether, as between the immediate parties to the instrument, parol evidence is admissible to show the real character of the transaction. In his excellent work on Agency, Mr. Mechem lays down the following general rules, which we think are sustained by reason and the weight of authority: (1) Where the paper, on its face, is the undertaking of the agent only, no reference being made on its face to representative capacity, and where the paper, on its face, is unmistakably the principal's, parol evidence will not be rceeived, in the one case to exonerate, and in the other to charge, the agent. (2) But where the paper bears on its face some reference to a principal, or some appellation the principal only, where the agent is sued and the note reads, "I promise," and is signed. "A. B., Agent." Collins v. Buckeye State Ins. Co. 17 Ohio St. 215, 93 Am. Dec. 612. Principal and surety. As to the distinction between suits at law and in equity. It is pretty well settled now that parol evidence is admissible to show the principal and surety on a note, no matter what the form of contract may be where the holder has notice. The payee who originally makes the contract with the principal as a result of his contract almost without exception has knowledge and the cases as to purchasers are nearly all those where they had notice at the time or having acquired notice did some act which the surety claimed exonerated him. In some of the states the statutes provide for a trial of the question of suretyship thus at once opening the way for parol evidence. Formerly it was only permitted in equity to prove the relation of principal and surety, but the doctrine of allowing it to be proved in all cases bas made rapid growth and may be considered the rule at the present time. Parol evidence is admissible to show who is the maker and who is the surety on a note in an action at law by the payee. Hubbard v. Jurney, 64 N. Y. 457. This overrules Campbell v. Tate, 7 Lans. 370, and Benjamin v. Arnold, 5 Thomp. & C. 54, and it had also been held that such a defense could only be made in equity, in the case of King v. Baldwin, 17 Johns. 384, 8 Am. Dec. 415. And is admissible to prove who is principal, and who is surety, in an action at law on a note. Garrett v. Ferguson, 9 Mo. 124: Mechanic's Bank v. Wright, 53 Mo. 153: Harmon v. Hale, 1 Wash. Terr. 422, 34 Am. Rep. 816; Perley v. Loney, 1 U. C. Q. B. 279. It was formerly held that at law it was not allowed to prove that one of the signers of a joint and several note was a principal and the other a surety, but was admissible in equity. Kerr v. Baker, Walk. (Miss.) 140: Slipher v. Fisher, 11 Ohio, 299; Farrington v. Gallaway, 10 Ohio, 543; Pintard v. Davis, 21 N. J. L. 632, 47 Am. Dec. 172. So it was held that evidence is competent in an equitable defense to show a release of the surety by acts of plaintiff the payee. Mutual Loan Fund Asso. v. Sudlow, 5 C. B. N. S. 449. While it was held in Strong v. Foster, 17 C. B. 201, that the surety was not discharged, yet the judges held that it was very doubtful if it could be shown by parol evidence that one of the joint makers was a surety. The later English cases have not followed this is undoubtedly true that the mere addition of the word 'Agent,' 'Trustee, "Treasurer,' and the like, or the mere recital in the body of the instrument that the person signing is such agent. treasurer, or trustee of a principal named or unnamed. is, as has been seen, to be regarded, prima facie, as descriptio persongs, merely, and not as characterizing the act as one done in a representative capacity; and while it is true, as a general rule, that parol evidence is not admissible to exonerate an agent from a contract into which he has personally entered, yet it is believed that the preponderance of authority will warrant the statement of the rule that-First, between the immediate parties to a bill or note, parol | doctrine and the case is not now an authority on the question of evidence. It was also formerly held that no parol evidenco can be received of any agreement inconsistent with what appears on the face of the instrument, but if the payee assents at the time of taking a joint note made by two, that one shall stand as surety, it may be proved. Manley v. Boycot, 2 El. & Bl. 46. A plea in equity claiming the defendant was surety only and was prejudiced by an extension, and that the defendant signed only for accommodation, allows parol evidence where the relation of the parties was known to the payee and accepted by payee as such. Pooley v. Harradine, 7 El. & Bl. 431; Greenough v. McClelland, 2 El. & Bl. 424; Ball v. Gilson, 7 U. C. C. P. 531; Yates v. Donaldson, 5 Md. 389, 61 ▲ m. Dec. 283. 48 to principal and surety in instruments under seal. Parol evidence is admissible as between the debtors on a bond to show who is the principal and who is the surety. Dickerson v. Ripley County Comrs. 6 Ind. 128; Cole v. Fox, 83 N. C. 463; Holt v. Bodey, 18 Pa. 207. Parol evidence is admissible to show who is principal and who is surety on a note under seal. Lewis v. Harbin, 5 B. Mon. 564; Emmons v. Overton, 18 B. Mon. 643; Scott v. Bailey, 23 Mo. 140. And is admissible to show which is principal and surety on a note under seal, where the promise is joint and several and the fact is known at the time to the payee, and this may be done in an action at law. Creigh v. Hedrick, 5 W. Va. 140; Rogers v. School Trustees, 46 Ill. 428. And it may be shown in law as well as in equity who is principal and who is surety on a sealed instrument. Welfare v. Thompson, 83 N. C. 276; Smith v. Doak, 3 Tex. 215; Bank of Steubenville v. Hoge, 6 Ohio, 17. Parol evidence is admissible to show that one seal was adopted by two signers of a note so as to show that it was a sealed note of both, and who is principal and who is surety. Twitty v. Houser, 7 S. C. N. S. 153. Under Miss. Code 1857, chap. 46, allowing the surety to have the debt made out of the principal, parol evidence is admissible to show who is maker and who is surety, on a note under seal. Ramey v. Purvis, 38 Miss. 501; Smith v. Clopton, 48 Miss. 66. While evidence is not admissible in law to show who is the principal and who is the surety on a sealed instrument, such may however be shown in equity. Deberry v. Adams, 9 Yerg. 52; Dozier v. Lea, 7 Humph. 520. And it was held that it could not be shown which of two signers is principal or surety, where the promise is joint, and signatures under seal. Green v. Lake, 2 Mackey, 162. The same was held where the promise is joint and evidence is admissible to show (a) that, by a course of dealing between the parties, that form of execution has become to be the recognized and adopted form by which the obligation of the principal is entered into; or (b) that the instrument was, to the knowledge of the parties, intended to be the obligation of the principal, and not of the agent, and that it was given and accepted as such; (c) that an instrument which is so ambiguous upon its face as to render it uncertain who was intended to be bound was known to be intended to be the obligation of the principal. Mechem, Ag. § 443, and other cases Parol evidence is admissible to show who is the principal and who is the surety on a note where the plaintiff is the payee or had knowledge of the relation of the signers to each other. Piper v. Newcomer, 25 Iowa, 221; Otis v. VonStorch, 15 R. I. 41; Ward v. Stout, 32 Ill. 399; Perry v. Hodnett, 38 Ga. 103; Rose v. Williams, 5 Kan. 483; Hall v. Wilcox, 1 Mood. & R. 58; Taylor v. Burgess, 5 Hurlst. & N. 1; Matheson v. Jones, 30 Ga. 306; Orvis v. Newell, 17 Conn. 97; Horne v. Bodwell, 5 Gray, 457; Flynn v. Mudd, 27 Ill. 323: Drew v. Drury, 31 Ill. 250; Kennedy v. Evans, 31 Ill. 258; Bruce v. Edwards, 1 Stew. (Ala.) 11, 18 Am. Dec. 33; McCarter v. Turner, 49 Ga. 309; Stewart v. Parker, 55 Ga. 656; Branch Bank at Mobile v. James, 9 Ala. 949; Fraser v. McConnell, 23 Ga. 888; Wells v. Girling, 8 Taunt. 737; Coats v. Swindle, 55 Mo. 31; O'Howell v. Kirk, 41 Mo. App. 523; Smith v. Bing,'3 Ohio, 33; Marsh v. Consolidation Bank, 48 Pa. 510; Irvine v. Adams, 48 Wis. 468, 33 Am. Rep. 817; Riley v. Gregg, 16 Wis. 667; Bank of St. Albans v. Smith, 30 Vt. 148. In a suit by the payee, it may be shown which of the signers of a note is surety or maker whether it appears on the face of the note or not. School Trustees v. Southard, 81 Ill. App. 359. And it may be shown who is principal and who is surety in an action on a note where the promise is joint and the plaintiff knew of the relation between the signers. Higdon v. Bailey, 26 Ga. 426; Vestal v. Knight, 54 Ark. 97; Harris v. Brooks, 21 Pick. 195, 32 Am. Dec. 254; Brander v. Garrett, 19 La. 455; Barron v. Cady, 40 Mich. 259; Corielle v. Allen, 13 Iowa, 289; Kelley v. Gillespie, 12 lowa, 55; Stillwell v. Aaron, 69 Mo. 539, 33 Am. Rep. 517. But evidence aliunde as to the character of the signatures, that one of two joint makers is surety, is inadmissible where it is not shown that the payee had knowledge. Neel v. Harding, 2 Met. (Ky.) 247; Roberts v. Bane, 32 Tex. 385. And it was held in Kritzer v.'Mills, 9 Cal. 21, that evidence as to principal and surety was inadmissible in an action on a joint note where nothing appears to indicate but what both are makers. Parol evidence is inadmissible to show that one party alone is the obligor on notes where he and each of four others give a separate note, and all sign the interest notes and the proceeds of the notes is invested in land the title to which is placed in all five of the parties. Forsythe v. Kimball, 91 U. S. 291, 23 L. ed. 352. A plea that a joint signer is surety was allowed to control the face of the note and judgment went against the surety for the whole of the debt, whereas if he had not plead suretyship he would only have been held liable for one half the debt. Roberts v. Jenkins, 19 La. 453. cited. See also 1 Am. & Eng. Encyclop. Law, 390, 391. In Metcalf v. Williams, 104 U. S. 93, 26 L. ed. 665, Mr. Justice Bradley says: "The ordinary rule, undoubtedly, is that if a per. son merely adds to the signature of his name the word 'Agent,' Trustee,' or 'Treasurer,' without disclosing his principal, he is per sonally bound. The appendix is regarded as a mere descriptio persona. It does not of itself make third persons chargeable with notice of any representative relation of the signer. But if he be in fact a mere agent, trustee, or officer of some principal, and is Parol evidence is admissible to show who is principal and who is surety in an action on a note against the persons who signed the same, where the promise is joint and several and the plaintiff had knowledge of the relation of the parties. Grafton Bank v. Kent, 4 N. H. 221, 17 Am. Dec. 414; Lime Rock Bank v. Mallett, 34 Me. 547, 56 Am. Dec. 673, 42 Me. 349; Mariner's Bank v. Abbott, 28 Me. 280; Jones v. Fleming, 15 La. Ann. 522; Stevens v. Oaks, 58 Mich. 343; Cummings v. Little, 45 Me. 183. And parol evidence is admissible to prove who is principal and who is surety, in an action on a note where the promise is joint and several and the statute provides for determining that relation in entering up judgment. Brenner v. Egly, 23 Kan. 123; Turner v. Miller, 28 Kan. 44; Foote v. Sprague, 13 Kan. 155; Kupfer v. Sponhorst, 1 Kan. 75; Rose v. Madden, Id. 445. Parol evidence is admissible to show the relation of signers of a note as principal and surety where it does not appear from the face of the paper, under Ga. Act 20 Dec. 1826, authorizing security to make a special defense. Bank of St. Marys v. Mumford, 6 Ga. 44. Parol evidence is admissible to prove who is the surety where the note reads, "We jointly and severally promise," where the note is held by payee. Emmons v. Overton, 18 B. Mon. 647; First Nat. Bank of Covington v. Gaines, 87 Ky. 597. But to the contrary it was formerly held that parol evidence is inadmissible to show which of the signers to a note is principal or surety in an action. by an alleged surety against the maker where all the parties sign as principals and the promise is joint and several. Hendrickson v. Hutchinson, 29 N. J. L. 180. Parol evidence is inadmissible to show which are sureties where the note is, "We jointly and severally promise," and is signed, “A. B.," "C. D.,” “E. F.,” and there is no evidence to show that the payee knew that anyone was a surety. As between the signers themselves it would be different. Wilson v. Foote, 11 Met. 285; Shriver v. Lovejoy, 32 Cal. 574; Bull v. Allen, 19 Conn. 101. After judgment. Evidence is admissible in equity to show which of the makers of a note is principal and which is surety, even after judgment. Davis v. Mikell, 1 Freem. Ch. (Miss.) 548. The relation of the parties as principal and surety was shown in a case where a judgment was rendered against a principal and surety and taken up by a renewal with another surety. Shufelt v. Moore, 93 Mich. 564. As between the obligors. In a suit between the signers of a note, parol evidence is admissible to show who is principal and who is surety or co-surety. Dunn v. Sparks, 7 Ind. 490; Craythorne v. Swinburne, 14 Ves. Jr. 170; Sayles v. Sims, 73 N. Y. 551; Sisson v. Barrett, 2 N. in the habit of expressing in that way his representative character in his dealings with a particular party, who recognizes him in that character, it would be contrary to justice and truth to construe the documents thus made and used as his personal obligation, contrary to the intent of the parties." In Kean v. Davis, 21 N. J. L. 683, 47 Am. Dec. 182, Chief Justice Green says: "The question is not, what is the true construction of the language of the contracting party? Whose language is it? And the evidence is not adduced to discharge the agent from a personal liability which he has assumed, but to prove that in fact he never incurred that liability; not to aid in the construction of the instrument, but to prove whose instrument it is. Now, it is true that the construction of a written contract is a question of law, to be settled by the court upon the terms of the instrument. But whether the contract was in point of fact executed, when it was made, and by whom it was made, are questions of fact, to be settled by a jury, and are provable in many instances by parol, even though the proof conflicts with the language of the instrument itself." In Hicks v. Hinde, 9 Barb. 528, where an agent drew a bill on his principal for a debt due from the principal to the payee, adding Y. 406: Oldham v. Broom, 28 Ohio St. 41; Knopf v. | Conditional signature and contradictory contracts. Party signing a note conditionally on the promise that another should also sign the same may And evidence was admitted showing the circum-show that fact when the agent of the payee and stances of obtaining a signature of another party plaintiff had knowledge of such agreement. Miller under that of the obligors of a note, to show that v. Gambie, 4 Barb. 146. he was not a co-surety but only a surety. Melms v. Werdehoff, 14 Wis. 18. A party who signs a note as surety two months after it has been jointly executed and delivered by two others can show that it did not impose any liability on him, and after a judgment has been rendered against all the signers he may show in a suit by one for contribution that he is not a surety, but as to him both the others are makers. McMahan v. Geiger, 73 Mo. 145, 39 Am. Rep. 489. As between themselves or a holder with knowledge, it may be proved what the relation of the parties to a note is, and who is principal and who are sureties. Whitehouse v. Hanson, 42 N. H. 9. The relation of the parties on a note may be shown by parol evidence, whether they are principal or sureties of the same or sureties of each other; and this is so where one signs as "surety" when the prior signer as surety did not know of such signing. Chapeze v. Young, 87 Ky. 476. Parol evidence is admissible to show which are sureties where a note reads, "We jointly and seyerally promise," signed A. B., C. D., E. F., surety, G. H., surety, and C. D. claimed that he was surety for A. B., where the note had come to the possession of one of the signers. McGee v. Prouty, 9 Met. 547, 43 Am. Dec. 409. It may be proved by parol that the relation of the parties to each other on a note is different from that of payee and indorsee, as that all the parties were joint principals or some joint sureties. Sweet v. McAllister, 4 Allen, 353. Parol evidence is admissible to show which party to a note is principal and which is surety as between themselves where the note reads "We or either of us promise," and is signed "A. B., C. D., E. F., Sureties." Apgar v. Hiler, 24 N. J. L. 812. Parol evidence is admissible to show the relation of the parties to a note as between themselves, and although the word "security" is annexed to a signature, it may be shown that such party is a principal debtor. Robison v. Lyle, 10 Barb. 512. And is admissible to show the true relation of the signers and that all are not co-sureties who may appear to be so, notwithstanding the fact that the word "surety " appears in connection with two of the signers. Adams v. Flanagan, 36 Vt. 400. In an action for contribution for money paid, parol evidence is admissible to show the true relations of the parties, no matter what the form of the instrument is,-and the signer, apparently a surety, may be shown to have been a joint maker. Mansfield v. Edwards, 136 Mass. 15, 49 Am. Rep. 1; Water Power Co. v. Brown, 23 Kan. 676; Martin v. Marshall, 60 Vt. 821. Parol evidence of the contents of a lost letter was allowed to prove that the signature to a note was obtained by an agreement that "you will not be responsible on it," was made before signing, in a suit by the payee. Hunter v. Lanius, 82 Tex. 677. On the contrary, it was held in Indiana that evidence is not admissible to prove that the maker of a note was not to be bound unless another party also signed the note, although the note on its face said that it was given to secure the payment of the A. B. church debt. Clanin v. Esterly Harvesting Mach. Co. 8 L. R. A. 863, 118 lnd. 372. And parol evidence that the treasurer of a savings bank agreed that the bank would not look to a signer who was surety for payment if he would sign the note is inadmissible as contradicting the writing. Barnstable Sav. Bank v. Ballou, 119 Mass. 487. So parol evidence is inadmissible as against the payee where the note is joint and several in order to show that the payee agreed to a parol agreement different from that expressed on the paper, affecting the relation and liability of the parties. Thompson v. Hall, 45 Barb. 214. Extrinsic evidence may show, as between the parties to a note, that it was signed for accommodation merely of the payee, and that there was no consideration. But under such a defense, a contemporaneous written agreement to prove that the payee relied on indemnity security and agreed not to enforce the note is inadmissible. Lebanon Sav. Bank v. Penney, 44 Minn. 214. Parol evidence is not admissible to prove that the obligor of a note was not to be bound on the happening of a contingency. Ely v. Kilborn, 5 Denio, 514. And is inadmissible to supply the name of a principal in a note which shows on its face to have been executed by the sureties but never filled out nor signed by the principal. Heman v. Francisco, 12 Mo. App. 559. One who expressly says on the face of the notethat "all whose names are signed to or indorsed upon this note expressly agree to be held as principal debtors" cannot show that he is a surety. Menaugh v. Chandler, 89 Ind. 94. A joint obligor on a note may show as between the parties that he was a partner with the plaintiff, who could not recover of him in an action of assumpsit. Pollard v. Stanton, 5 Ala. 451. In the preparation of this note, the cases arising out of suits on bills of exchange, drafts, checks and indorsements have not been included as moreproperly subject-matter of another note. I. T. |