Benedict v. Cox

<p> Promissory Note. Principal and Surety. Parol Evidence to Vary Written Contract. Statute of Frauds. </p> <p>Where the language of a promissory note is, “ We jointly and severally, each as principal, promise,” &c., and the word surely is not affixed to any of the signatures thereto, the signers thereof are, as to the holder, all principals. Thus, where in general assumpsit by the payee of such a note against one of the makers, defendant asserted that he was in fact a surety for his co-maker, and objected to the admission of the note in evidence, for that it did not support the declaration, it was held that the note was admissible.</p> <p>Defendant offered to prove by parol that it was agreed between himself and his comaker that he should be held for but six months. Held, but an offer to vary the written contract, and inadmissible.</p> <p>He also offered to prove that after the expiration of the six months he applied to the plaintiff to have him collect of his co-maker, who was then solvent but afterwards became otherwise, when plaintiff told him the co-maker was good, and that he would look to him for payment. Held, inadmissible, because defendant was, as to plaintiff, not surety but principal, and because’it did notappear that any valid contract upon consideration was then made between plaintiff and defendant, nor that, relying on plaintiff’s representation, defendant forebore to protect himself.</p> <p>He also offered to prove that plaintiff afterwards verbally agreed with defendant’s comaker, for valuable consideration, on an extension of time. Bdd, that the contract was within the fourth section of the Statute of Frauds, aud that the evidence was inadmissible.</p>