Evans v. Daughtry , 84 Ala. 68 ( 1887 )

STONE, C. J.

There is no conflict in the testimony in this case. It fully proves that Evans signed the bond conditionally, and left it with Eaney, his principal, with the understanding and instruction, that he was not to become a surety on the bond, unless Pearson and Scott became co-sureties with him. In other words, it was left with him as an escrow. ‘ Neither Pearson nor Scott signed the bond, and it results, if there is nothing else in the transaction, that Evans is not bound as a surety on the bond. — Bibb v. Reid, 3 Ala. 88; Guild v. Thomas, 54 Ala. 414; Marks v. First National Bank, 79 Ala. 550; Smith v. Kirkland, 81 Ala. 345. The court below found, as fact, that Evans did sign on the conditions claimed.

2. It was contended in the Probate Court, and the court so ruled, that Evans, by permitting Eaney to obtain the appointment of guardian on said bond, and to act under it, had estopped himself to deny his liability as surety.— Wright v. Lang, 66 Ala. 389, is relied on, as supporting this view. The principle is certainly sound, if the facts justify its application to this case. To make this principle applicable, however, it must be shown that the party sought to be estopped had knowledge that his confidence had been abused, or had 'notice of some suggestive fact, which, if followed up, would have led to such knowledge. — Howe v. Ashley, 60 Ala. 496; Burns v. Campbell, 71 Ala. 271; Herring v. Skaggs, 73 Ala. 446.

The testimony in this case, if . believed, shows that Evans took prompt measures to avert any injury that might result from an improper use of his name. There is no testimony that he even knew that Raney had been appointed guardian, until shortly before the latter was brought to settlement; nor is there proof of fact or circumstance, which made it his duty to inquire. If any such facts existed, they are not proved. Under the facts, as shown in the record. Evans is entitled to have the execution so modified as to strike his name therefrom, and to be discharged from all liability as one of the sureties.

Reversed and remanded.