Pauly v. Murray

Vanclief, C. Action on a promissory note made by defendant to said bank July 20, 1891, for the sum of five hundred and seventy-eight dollars and eighty cents, payable ninety days after date, with interest at the rate of one per cent per month from date. .

It is alleged in the answer of the defendant that this note was made by him as a renewal of a former note for the sum of five hundred dollars and interest, jointly made by him and one Hugh Burns to said bank, on which joint note he was a mere surety, of which the [15]bank had notice at the time it was signed by him; that said joint note was given to secure a loan of five hundred dollars, made and advanced to Burns by the bank on a note signed by Burns alone, several hours before defendant signed the same as a joint maker with Burns; that at the time defendant signed the last-mentioned note he was ignorant of the alleged facts that the bank had, some hours before, on the same day, actually advanced to Burns the five hundred dollars loaned, and had accepted as security therefor the note signed by Burns alone; that he was induced thus to sign said joint note by a collusive and fraudulent suppression, by Burns and the bank, of the facts that the loan had been made, and that Burns’ individual note had been accepted therefor, before he was induced to sign said note as a joint maker; that he remained ignorant of said suppressed facts until long after he individually made the note in suit as a renewal of said joint note; and for these reasons he alleges that there was no consideration for his signature to said joint note, and consequently no consideration for the renewal thereof by the note in suit.

The court below found as facts that the loan to Burns by the bank was solicited by Burns on January 21, 1890, he having been introduced to Collins, the president of the bank, by defendant; that at the time he solicited the loan Burns represented to the bank that defendant would sign a note for the money, if loaned, jointly with him, though defendant was not then present, and had not then promised the bank to sign the note; that thereupon the bank agreed to make the loan on the condition that Burns would procure the signature of defendant to the note as a joint maker; that Burns then signed the note and passed it to the note-clerk of the bank, promising that he would cause defendant to sign it, but the president of the bank then directed the clerk not to enter the note as discounted by the bank until it should be signed by the defendant, but at the same time advanced and delivered the five