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if the names of the other proposed securities, C and D, had appeared in the body of the note, for that would have been notice to the payee that it was not properly executed.

§ 15. Alteration of instrument. A material alteration of a bond or note, intentionally made by a party having an interest in it after its execution, and without the consent of a surety bound by it, invalidates such instrument as to such surety. Such alteration destroys the contract as made by the surety, and substitutes something else for which he did not agree to be bound as surety. To illustrate, where a man borrowed money on his note for $500 which was endorsed by a friend, and afterwards, without the endorser's consent, raised the amount of the note to $750 in order to secure an additional loan, the note was held entirely invalid as to the endorser (14). If an alteration does not destroy the identity of the contract as made, or does not in any way affect the liability of the surety thereon, such alteration will not release the surety (15). Thus, an additional surety may sign the insrument, for this, of course, has no effect on obligation of the surety who had previously signed. Words which are immaterial may be struck out or put in, without releasing the surety.

§ 16. Filling blanks in instrument. If a surety sign a bond or note in blank, and, relying on the good faith of the principal, return it to the principal, he thereby gives the latter apparent authority to fill up the blanks; and, if the principal does fill up the blanks in the instrument,

(14) Batchelder v. White, 80 Virginia, 103. (15) Bank v. Hyde, 131 Massachusetts, 77.

the surety is liable to an innocent obligee or payee. It would be unjust to allow an innocent holder, who had paid value for an apparently good bond or note, to lose his money by such a negligent act of the surety. It is the surety who relies on the principal to do as he agreed to to do, and he should suffer if the principal acts in bad faith. One executing an instrument, knowing there are blanks in it to be filled up, is liable to innocent transferees, even though the blanks are improperly filled up after he has executed it, and in such cases sureties are responsible for additions made to the instrument without the knowledge of the obligee (16).

§ 17. Negotiable notes. The same rule applies to negotiable notes. For instance, when a party to a negotiable note gives it into possession of another for use, with blanks not filled up, such instrument carries on its face implied authority to fill up the blanks necessary to perfect the same. As between such party and an innocent transferee of the note, the former is deemed the agent of the party, who intrusted the note to him, to fill in the blanks necessary to make the note perfect. In an Ohio case the sureties on the note signed it in blank and gave it to the principal, who was to fill in the blank for a certain sum. The principal filled in with a much larger sum than agreed upon and delivered the note to the creditor, who knew nothing of this fact. The creditor, as an innocent holder for value in a suit against the sureties, was permitted to recover the amount of the face of the note (17).

(16) Chicago v. Gage, 95 Illinois, 593.

(17) Fullerton v. Sturges, 4 Ohio State, 529.

The same rule applies when a surety signs the note, delivers it to the principal on condition he get another surety, and the principal forges the name of the second surety.

§ 18. Estoppel of surety signing instrument. It is a settled rule of law that a party cannot contradict his own bond or note. He cannot insist that it means something different from what is indicated on its face. Therefore, if one agrees expressly to be bound on a note or bond as principal, and so signs, he is estopped from asserting against the obligee that he is only a surety. Sureties also are estopped from denying facts recited in their obligations, even though such facts are false. Thus, in a Missouri case, a sheriff had made a levy and seized goods of a debtor; and a bond for the delivery of the goods to the creditor, if the court should so order, was given. It was held, since the bond recited that the sheriff had made seizure and levy of the goods, the sureties on such bond were estopped to deny the fact of the seizure and levy or its validity (18).

§ 19. Estoppel of surety as to other facts. A surety on an official bond of an officer is estopped to deny the validity of the election or appointment of such officer, in order to avoid liability on such bond. Neither can a surety for a corporation deny the corporate existence of the body for which the bond was given, in order to invalidate such bond. And, in the case of any bond given in the course of legal business, the sureties on such bond will be estopped to deny the jurisdiction of the court in charge

(18) Hanly v. Filbert, 78 Mo. 34.

of the litigation in the course of which the bond was given. It is also true that a surety cannot attack his bond in any collateral proceeding upon the ground that it is void.

§ 20. Effect of judgment on surety. A surety is bound by a judgment against his principal to the same exent as the principal. Thus, if a man is surety on a bond for the performance of an obligation by the principal, and a judgment of $1000 is secured against the principal for the improper performance of his obligation, the surety is bound by this judgment. If the effect of the obligation is such that the surety is to be bound by the results of the litigation between others, he is bound by such results, unless there is fraud or collusion on the part of the parties to such litigation. When the bond the surety signs is to indemnify against liability by judgment, a judgment against the principal is conclusive as to the surety.

CHAPTER II.

SURETY'S LIABILITY AND DISCHARGE.

§ 21. Absence of liability of principal to creditor. In the absence of fraud or duress on the part of the creditor, a surety is bound on his agreement, even though the obligation of the principal to the creditor is voidable or entirely void and there can be no recovery from the principal. The fact there is no valid claim against the principal does not release the surety. This is well illustrated where there is a surety on a contract made by a married woman, in a state where a married woman is incapable of making a contract. In the case of Kimball v. Newell (1), which arose in New York, a married woman took a lease of a house, and the defendant in the case became her surety for the payment of the rent. A married woman's contract at that time by the law of New York was absolutely void. The landlord sued the surety for the rent due on the premises, and the latter set up the fact that there was no liability on the part of the principal, but the court held this did not release the defendant from his obligation as surety. Such a decision must mean that the surety's promise was that he would do what the principal promised to do, if the principal did not. The law is the same where the principal is not bound because he is (1) 7 Hill, 116.

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