William Devries & Co. v. Shumate

Alvey, J., delivered the opinion of the Court. The object of the bill in this case was to obtain an injunction against the appellants to restrain the negotiation of two certain promissory notes, dated the 12th of March, 18T8, payable at six and twelve months from date, with the appellee’s name as surety thereon, and to have the signature of the appellee to the said notes cancelled. The Court below decreed the notes to be void as against the appellee, and that the appellee’s signature thereto be can-celled ; and further, that the appellants be restrained from negotiating or transferring the notes with the appellee’s signature thereon. That decree is the subject of the present appeal.

It is not necessary to state the history of the transactions between the appellants and Robert Lear,-the principal in the notes, prior to the 12th of March, 1818. It is sufficient to state that at that time Lear was indebted to the appellants, Baltimore merchants, in the sum for which the two notes in question were made, for merchandise previously sold him. Eor this debt the appellee was in no manner bound. She was the mother-in-law of Lear, and it appears that when he was negotiating for the purchase of the goods from the appellants, and the question arose as to the security he could furnish, he stated that he could get his mother-in-law to become his surety for the goods.

There is not, however, a pretence in this case that she had ever authorized Lear to make such assurance, or that she ever even knew or supposed that the parties were dealing with any reference whatever to her becoming liable as surety for the goods. But the appellants, acting upon the statement made by Lear that he could furnish his mother-in-law as surety, about the date of the notes in' question, ²¹³ sent a salesman in their store, a Mr. Dryden, to Warrenton, in Virginia, the place of business of Lear, to get notes for the amount due them, with the appellee as surety thereon. And the whole question in this case depends upon what occurred upon this mission of Dryden. Upon going to Warrenton, Dryden at once went to Lear and informed him of the object of his visit, and urged the making of the notes.

The appellee residing some distance from the town, Lear and Dryden went to her house, and, while the latter remained in one room, the former sought an interview with the appellee in another, and there, finding her greatly opposed to signing the notes, after persuading and urging for at least an hour and a half, the appellee was at last induced to sign the notes, which had been previously prepared, with the distinct understanding, according to the overwhelming preponderance of proof, that the propriety of her signing them should be submitted to and approved by her friend and adviser, Captain A. E. Bayne, before they were delivered or passed to the appellants. The notes, signed with this understanding, were taken possession of by Lear, and the condition upon which they were signed was communicated to Dryden, as well by the appellee herself, as by Lear, who was entrusted with the notes to be delivered to Dryden for the appellants upon the approval of Payne. For the purpose of safe preservation simply, according to the testimony of Lear, he handed the notes to Dryden before they saw Captain Payne, and though Payne, when made aware of the facts, positively refused to approve of the signing .the notes hy the appellee, Dryden, having obtained the possession of the notes in the manner stated, refused to surrender them, though required to do so by repeated demands. In proof of the condition upon which the notes were signed the testimony is quite conclusive.

That of the appellee herself, her daughter, her son, and her son-in-law, all concur in proof of the fact, to which ²¹⁴ may be added the silent acquiescence of Dryden when the condition was stated to him by Captain Payne, at the time when the latter’s approval was sought. If, however, additional proof of this be needed, it is furnished in the circumstances of the case. Dryden himself proves, as do the witnesses on the part of the appellee, that he and Lear did go to Capt. Payne’s office, the day after the notes were signed, as requested by the appellee, and that he there met the appellee’s son, who demanded the surrender of the notes.

He also proves that Capt. Payne questioned him as to the condition under which the notes were signed, and insisted that they should be surrendered. The question then is, for what purpose did the parties go to Capt. Payne’s office, if not for the object testified to by the appellee’s witnesses ?

According to the testimony of Dryden, he says that he understood the purpose of being directed to see Capt. Payne was, to have proved to him, the witness, “that the notes were all right and secured.” This, in view of the fact that he had been sent to get her name on the notes, and that it had been obtained only after the greatest difficulty and persuasion, to say the least of