Gwyn, Ex'r. C. v. . Patterson , 72 N.C. 189 ( 1875 )

The bond which is the subject of this action, came to the hands of the plaintiff's testator, perfect in form, with nothing about it to excite inquiry and put the obligee on guard. He received it and advanced his money thereon, and it is only when suit is brought for the collection thereof, several years thereafter, that we hear anything of a private understanding between Minter, the principal obligor, and Patterson, his surety, the present defendant, that another surety should also sign the bond before delivery. Concede that such was the understanding between Minter and Patterson, what is it worth, when we consider the fact that Johnson, the plaintiff's testator, when he parted with his money knew nothing about the conversation and understanding between Minter and Patterson.

Conditions imposed by a party to a contract to be effectual against the other party, who has been induced by the contract to alter his condition, to his prejudice, must have been in some way brought to his notice. In Townsend v. Moss, 5 Jones Eq., 145, with a similar state of facts to the case at bar, it was said by the Chief Justice, arguendo, "if loss follows from this breach of confidence, it should fall on the party who reposed the confidence, rather than on an innocent third person." Or, in other words, where one of two innocent persons must suffer, by the acts of a third, he who had enabled such third person to occasion the loss must sustain it. In State v. Peck, 53 Maine, 284, BURROWS, J., has collected and distinguished the cases on this subject, in so satisfactory a manner as to render a further discussion of it unnecessary. We will only quote the syllabus in Millett v. Parker, 2 Metcalf, 608, which is directly in point: "One who signs a covenant as surety upon the condition and agreement between him and his principal, that is not to be binding upon him or delivered to the covenanter, unless another person should also sign it as surety, is bound thereby, although the principal to whom he entrusted it, delivered it to the convenanter, without a compliance with such condition, of which and its breach the latter has had no notice."

PER CURIAM. Judgment below affirmed.