Kritzer v. Mills
Before: Burnett, Terry
Synopsis
Where a promissory note is signed hy two persons in the same manner, with nothing on the face of the note to show that one was merely a surety, he cannot set up in defence that he was such, and that the plaintiff had not sued in due time, and had given no notice of demand and protest.
Burnett, J., delivered the opinion of the Court—Terry, C. J., concurring. This was an action upon a promissory note executed by defendants. The defence 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 togue is no defence. (5 Cal., 173.) The defendant Coun was nJUKtitlod to notice. The note was signed “ John Mills,”
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. R., 485 j Lightstone v. Lawrence, 4 Cal., 277 ; and Bryan v. Berry, July
Judgment reversed, and cause remanded, and the Court below will render judgment for plaintiff.
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