Lathrop v. Wilson , 30 Vt. 604 ( 1858 )

The opinion of the"court was delivered by

Poland, J.

The contract or note signed by the plaintiff the defendant, and Burnham, was upon its face an attempt by all the signers to aid Jessup to get bail, and to secure some one for becoming his bail.

The word surety, being added after each of the names of the plaintiff and Burnham, and the defendant’s name being first upon the instrument, and with no such addition to his name, we think the legal presumption would arise from the paper alone, that as between the parties, the defendant was principal, and the plaintiff surety for him. Br.t this was not by any means conclusive, and the real purpose and object of the paper, and the x-eal relation of the parties, might be shown, notwithstanding the addition of surety to the plaintiff’s name. The evidence showed, as appeax-s by the exceptions, that the plaintiff did not sign the paper by the request of the defendant, but at the request and procux-ement of Burnham, axxd it would seem that he was.in a measure induced to sign it on account of his connection with Jessup.

We think the plaintiff could xiot make himself the defendant’s surety, without any request, and without his knowledge even. But the question was wholly one of fact, for the county court to find, and they have found that the plaintiff and the defendant both stood in the same relation upon the note, which we suppose to mean, that they were either both joint principals, or joint sureties, for Burxiham or Jessup; in either event, the one paying the whole, could only recover a moiety of the other.

It does not appear but that the county court gave all px’oper legal force to the addition of surety to the plaintiff’s name, and we see no reason to doubt that its prima facie effect was fully ovex’come by the proof in the case.

The judgment of the couxxty court is affirmed.