
    Ferdinand Westheimer and Others, Appellants, v. Horace Helmbold, Defendant, Impleaded with Henry A. Jackson and Ida May Jackson, Respondents.
    Second Department,
    December, 1905.
    Bills and notes — accommodation indorsers, when liable though only part of face of note advanced.
    The defendants were accommodation indorsers on a note for $300 upon which $100 was advanced, the balance to be - advanced if,, upon investigation, the references given .by the indorsers proved satisfactory. The indorsers being unsatisfactory, the note -was returned to the maker to procure another indorser, whereupon he took the note to the indorsers and it was destroyed in their • i presence.
    
      Meld, that such indorsers are liable.
    Appeal by the plaintiffs, Ferdinand Westheimer and others, from a judgment of the City Court of Yonkers in favor of the defendants Henry A. Jackson and Ida May Jackson, entered in the office of the clerk of said court on the 24th day of December, 1904, upon the decision of the court dismissing the complaint as to the said defendants Jackson.
    
      Wilbur F. Earp, for the appellants.
    
      Stephen Fraser Thayer, for the respondents.
   Miller, J.:

The facts in this case are undisputech The defendants Jackson were accommodation indorsers on a promissory note for $300 made by the defendant Helmbold, upon which note the plaintiffs advanced the sum of $100 and agreed to advance the balance in case, upon investigation, the references given by the indorsers were found to be satisfactory. The note was delivered to the plaintiffs at the time the $100 was advanced. Subsequently upon demand being made by the defendant Helmbold for the balance of the money, he was informed that the references were not satisfactory and that no further sum would be loaned on the note without another indorser which he promised1 to get and for which purpose he obtained possession of the note. Instead of obtaining the other indorser, he took the note to the defendants Jackson and it was destroyed in their presence. The action is now brought to recover the $100, and from the judgment in favor of the defendants Jackson the plaintiffs appeal.

The trial court found as a fact that the plaintiffs refused to accept the note and that it was never delivered to and accepted by them, but this finding is opposed to the uncontradicted evidence, which is that the note was delivered to and accepted by' the plaintiffs for a loan of $100, and that it was returned to the maker for the sole purpose of obtaining another indorser named, whereupon the further sum of $200 was to be loaned. The respondents rely upon the rule that the contract of suretyship must be construed strictly and that any departure from the strict terms of the contract discharges the surety, but the plaintiffs need not quarrel with this rule in order to succeed. . The contract of the surety has not been varied in any respect. There is nothing to show that they ever imposed as a condition of liability that the entire $300 should be loaned their principal, or that if such condition was imposed the plaintiffs had any reason to suspect it. The defendants -became surety for the payment of the sum of $300. The contract was delivered to the plaintiffs as security for the payment of $100, and unless the defendants can complain because they are only asked to pay $100, whereas they should have been required to pay $300, the plaintiffs should succeed. I.think that the loan of the $100 upon the faith of the defendants’ contract' of indorsement made them liable on such contract for such amount, and. ad vise that the judgment of the City Court of Yonkers be reversed and a- new trial ordered, costs to abide the event. .. .

Babrlett, Jenks, Hooker and Rich, JJ., concurred.

Judgment of the City Court of Yonkers reversed and. new trial ordered, costs to abide the event.  