
    Andrew Cox v. Holloway & Burton.
    Bills and Notes — Promise of Payee to Secure Additional Sureties.
    Though a note he delivered, with the understanding, that another is to sign it, it is obligatory on those signing, if the additional surety be not secured.
    Same.
    Where such additional surety is not secured, an action for damages to the ones signing, will lie, for failure to thus secure additional names.
    APPEAL FROM WHITLEY CIRCUIT COURT.
    September 21, 1869.
    
      Wilson & Rodman, for appellant.
    
   Opinion of the Court by

Judge Williams:

The answer does not allege that it was agreed between appellant and appellees, or either of them, that the notes signed by appellant as the surety of Early payable to appellees were only to be binding upon condition that the two Kings were to sign them also, but the averment is that Early represented to him in the presence of one of the appellees that the Kings would also sign it.

As heretofore decided by this court, a note cannot be delivered to the payee as an encrow, and therefore if it be so delivered, even with the understanding that another is to sign it, still it is obligatory on those delivering, whether, the others ever sign it or not, but if the payee undertakes that others shall be procured, he will be liable in damages to the surety whose name appears for not obtaining the additional names, which may be set up as a counter^ claim to a suit on the notes.

In this case, however, there is not sufficient evidence that either of appellees undertook that the Kings or any one else, should also sign the notes as surety.

Wherefore the judgment is affirmed without damages, no supersedeas appearing.  