¶1Defendant was sued 'upon a note which he signed as joint maker with his brother C. S. Oaks in 1872. The note is in form joint and several. The defense was that defendant signed as a mere surety, and that C. S. Oaks was the principal debtor and had been given time by an extension to which defendant was not a party.
¶2The testimony was uncontradicted that the money was lent to C. S. Oaks, and that the note was extended for a valuable consideration. There was nothing left for the jury unless there was some conflict. Plaintiff appeared as a witness and only testified that it was understood defendant was to be a joint maker. lie did not contradict the transactions of loan or extension, or the fact that C. S. Oaks was the principal debtor.
¶3The note took the form which plaintiff said it was to take, and in one respect a more favorable one for him, by being several as well as joint. But the form of the obligation does not prevent a showing that one of the parties was a surety. He was bound by the obligation in the form which he adopted. But it is elementary law that a creditor who knows of the fact of suretyship must not violate the rights of the surety. That plaintiff knew the nature of the transaction was shown and not denied. Having taken the stand and not denied it, the jury could not regard it as matter of controversy.
¶4Hpon the undisputed facts defendant was discharged, and no theories of law could lead to a different result.
¶5The judgment must be affirmed.