
    Harter and Another v. Moore.
    A sealed note executed in the name of a firm of Is. V. Harter & Co., purports to bind only Harter; and a third person, therefore, executing such note as surety, supposing it to be the note of the firm, cannot complain that a fraud was committed on him, though the note was for the private debt of Harter.
    
    The defence of a surety — that the creditor has given time to the principal, &e., is not valid, unless it appear that the agreement for delay was founded on a valid consideration.
    
      Tuesday, July 28.
    ERROR to the Tippecanoe Circuit Court.
   Dewey, J.

Moore sued Harter and Hanna on three sealed notes for 100 dollars each with ten per cent, interest, describing them in his declaration as being executed by Harter in the name and style of “Is. V.- Harter '& Co.,” and by Hanna- in his own proper name; Harter did not, appear to the action, and an interlocutory judgment was entered against him. Hanna craved oyer of the notes, which was granted; the notes purported to be executed by Is. V. Harter & Co., and by Hanna with the word “ surety ” affixed to his name. Hanna pleaded, 1st, That the notes had been procured from him by fraud, &c.; on this plea there was issue; verdict for plaintiff, and final judgment against both defendants; Hanna also pleaded, 2dly, That Harter and one Taylor had been copartners in trade under the film of Isaac V. Harter & Co., but that the partnership was dissolved before the execution of the notes; that Hanna was ignorant of the dissolution when he signed them, and believed Taylor was a party to and bound by them, or he would not have executed them; 3dly, The same facts contained in the second plea, with the additional averment that Moore knew the dissolution had taken place, and omitting the allegation that Hanna would not have executed the notes had he known that Taylor was not bound by them; 4thly, That, after the maturity of the notes, Moore, without the knowledge or consent of Hanna, gave further time to Harter, in consideration that the latter had agreed to pay him ten per cent, on the notes; 5thly, The same as the second plea excepting the conclusion, which gives the plea the form of a special non est factum. The plaintiff demurred generally to the four last pleas, and the Court sustained the demurrers.

The second, third, and fifth pleas, set up substantially the same matter in defence; the inquiry is, Does any of them contain a good bar? In the case of Hagar et al. v. Mounts, this Court decided that a promissory note, knowingly taken by a creditor of one partner for his separate debt, but signed by such partner in the name of the firm, without the consent of his copartner, and executed also by a person who supposed he was surety for the firm, was not binding upon the partner who was a stranger to the consideration’, nor upon the surety. 3 Blackf. 57. That decision, so far as the surety was concerned, turned upon the principle that, as the note appeared upon its face to be the note of the firm, and as he believed he had the responsibility of the firm for his indemnity, when in fact one of the partners was not bound in consequence of the consideration being the private debt of the .other partner, the transaction was a fraud upon him. But this case is distinguishable from that of Hagar et al. v. Mounts, because it is founded on specialties. The sealed notes in this case do not, on their face, purport to be the deeds of Taylor. They would not bind him even if the partnership had been in existence at the time of their execution, and they had been for a debt due from the firm, unless he had specially authorized their execution in the name of the firm. The dissolution of the partnership was an immaterial fact. If Hanna meant to look to Taylor for indemnity, he should have inquired into Harter’s authority to bind him, for there was no reason to suppose, from the face of the papers, that Taylor was bound by them. Hanna cannot, therefore, in. legal contemplation, complain that a fraud was practised upon him by the transaction set out in the pleas under consideration.

The fourth plea, which alleges that Moore gave further time to Harter, is bad for not showing a valid contract to that effect. The plea avers, that in consideration that Harter had agreed to pay ten per cent, interest on the notes, Moore contracted to prolong the time of payment. The notes upon their face drew ten per cent, interest; therefore no consideration is shown for the agreement to postpone the payment, which, for that reason, were there no other, was not binding upon Moore, and could not affect the rights of the Braman v. Howk, 1 Blackf. 392, and n. 2.—Naylor v. Moody, 3 Blackf. 92.—Coman v. The State, 4 Blackf. 241.

R. A. Lochwood and D. Mace, for the plaintiffs.

A. Ingram and Z. Baird, for the defendant.

. All the demurrers were correctly sustained.

Per Curiam.

The judgment is affirmed with costs.  