
    C. J. S. BOOKER v. H. C. ELLER, Jr., et al.
    (Filed 5 May, 1909.)
    Notes — Joint Principals — Fraud as to One, Valid as to the Other.
    In an action upon a note, when it appears from its face that it was signed by two persons as joint principals, and the jury have found it was obtained by fraud as to one, but was valid as to the other, as to whom there was no evidence that fraud had been used, a judgment upon the note in plaintiff’s favor and against such other principal was properly rendered.
    .ActioN upon, a note, tried before Justice, J., and a jury, at January Term, 1909, of Wilkes.
    The defense was that the note, appearing upon its face to have been made by two joint principals, H. C. Eller, Jr., and H. 0. Eller, Sr., was procured by the false and fraudulent, representar tions of the plaintiff. The jury found that it was fraudulent as to H. C. Eller, Jr., but not as to H. C. Eller, Sr., and judgment was rendered accordingly in plaintiff’s favor against H. d. Eller, Sr., who excepted and appealed.
    
      Finley & Hendren for plaintiff.
    
      W. W. Barber for defendant.
   Walker, J.

This action was brought to recover the amount of one of a series of notes executed by H. 0. Eller, Jr., and his father, H. C. Eller, Sr., to the plaintiff. The defendants admitted the execution of the notes, and alleged that they were procured by fraudulent representations made by the plaintiff. We need not inquire whether the fraud is sufficiently pleaded, as we are of the opinion that there was no error committed by the court in its refusal to sign the judgment tendered by the defendants in. rendering the judgment, which appears in the record.

The note in controversy is as follows :

$84. WilkesboRO, N. 0., May 31, 1901.

August 20, 1901, after date, I promise to pay to the order of C. J. S. Booker eighty-four dollars, value- received.

H. .0. Eller, Jr.

H. C. Eller Sr.

Tbe court submitted certain, issues to tbe jury, which, witb tbe answers thereto, are as follows:

1. “Were tbe notes sued upon procured from H. 0. Eller, Jr., by tbe false and fraudulent representations of tbe plaintiff?” Answer: “Yes.”

2. “Were tbe notes sued upon procured from H: C. Eller, Sr., by tbe false and fraudulent representations of tbe plaintiff ?”

Tbe jury, under instructions of tbe court, answered “No.”

It will be seen tbat tbe' jury found in favor of tbe defendant H. 0. Eller, Jr., and against tbe defendant H. 0. Eller, Sr. Tbe defendant H. 0. Eller, Sr., by bis counsel, tendered a judgment to tbe effect tbat -tbe -plaintiff was not entitled to recover as to bim upon tbe verdict. Tbe judge refused to sign tbe judgment, but signed a judgment as above set forth.

Tbe defendant H. C. Eller, Sr., did not request tbe court to give any instructions to the jury, so far as appears in tbe case, although be relied, in argument, upon tbe defense that be was a surety for bis son, H. C. Eller, Jr.; and if tbe note is void as to bim, as principal, it is also void as to II. C. Eller, Sr., as surety. Tbe evidence as to whether H. 0. Eller, Sr., was merely a surety is vague and unsatisfactory. Upon tbe face of tbe note be appears to be a principal. But we need not complicate a simple case by any consideration of this question. We are restricted to tbe assignments of error. The jury have found tbat H. C. Eller, Sr., was a principal and tbat as to bim there was no fraud. There is not a particle of evidence tbat be was influenced by any fraudulent representation to sign tbe note, even if in tbe state of the record we are permitted to go behind tbe verdict. It all comes to this: tbat tbe jury have found tbat H. 0. Eller, Sr., made a valid contract to pay tbe plaintiff tbe.sum of money which he claims in this action, and we are unable to see why, upon tbe-verdict, be is not entitled to judgment.

No Error.  