Brown v. Merchants Trading Co.

Stephens, J.

1. Section 3556 of the Civil Code (1910), which provides that where the fact of suretyship does not appear upon the face of the contract it may be proved by parol provided the surety gives notice to the principal of his intention to make such proof, applies only to cases ■where the defendant seeks to establish himself as a surety, not by way of a plea in bar to a suit against him on the contract, but for the purpose of enforcing his rights as a surety against his principal.

Decided February 24, 1921.

Attachment; from city court of Dublin- — -Judge Flynt. June 11, 1920.

W. A. Dampier, for plaintiff in error. Burch & Daley, contra.

2. A female defendant whose name appears as a principal on the face of the contract sued on may plead in bar to the suit that she was in fact a surety only, and that, being a married woman at the time she entered into the contract, the contract of suretyship was void; and it is not necessary to the validity of such plea that it appear that notice was given to the alleged principal, as required by Civil Code (1910), § 3556, of her intention to make such defense. The court erred in striking the defendant’s plea and in giving judgment for the plaintiff.

Judgment reversed.

Jenhins, P. J., and Hill, J., concur.