
    George S. Deming v. The Board of Trustees of The Ohio Agricultural and Mechanical College.
    1. The guaranty of the payment of the debt of another, made at the time the debt is contracted, does not constitute the guarantor and the principal debtor, joint promisors. And such guaranty, made without the knowledge of the principal debtor, does not so alter his yontract as to discharge him from liability.
    2. D. subscribed $500, and promised to pay the same to the Ohio Agricultural and Mechanical College, in consideration that said college should be located at a specified placo. ÜST., in writing before the acceptance of the subscription, guaranteed the payment of the sum so subscribed. Said subscription, with the guaranty thereto annexed, was delivered to, and accepted by, the trustees of the college, as one instrument. Held; That the liability incurred by D. and N., respectively, by said instrument is several, and not joint.
    3. A release of such guarantor from his liability, by the creditor, does not affect the liability of- the principal debtor.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Franklin county.
    The action below was brought by the defendant against the plaiptiff in error and Robert E. Neil, on an instrument in writing, which reads as follows :
    “ The undersigned agree, among themselves,to contribute the amounts set opposite their names herein severally, in annual installments, from date, of 33|- per cent., provided and upon condition that the Ohio Agricultural-and Mechanical College be located upon the farm of Henry Neil, and adjoining lands, as now proposed, just north of the tollgate, on the Worthington road, said money to be paid to the proper authorities of such institution.
    “ $500. G-. S. Deming.
    * * * *
    “ Whereas, several subscriptions have been made by citizens of Franklin county and others, to pay several sums of money for the purpose of securing the location of the Ohio Agricultural and Mechanical College in the county, the names of which persons and the sums by them respectively subscribed, are found in a schedule hereto attached, marked ‘ A,’ and made part hereof, and it being the true intent and meaning of said subscription that the same should be paid to the treasurer of said college, for the benefit thereof:
    “Now therefore, in consideration of the location of said college in said county, we, the undersigned, hereby guarantee that said several sums of money shall be paid to said treasurer, at the times nominated in said several subseriptions. R. E. Neil.”
    The amended petition alleged that the subscription and guaranty were made at the same time and place, and for the same consideration and purpose; that the college was located, aud its buildings erected, on the site proposed; that demaud had been made for the sum subscribed as its installments matured, and that defendants refused to pay.
    Deming demurred upon four specified grounds : that the plaintiff below had no legal capacity to sue; that there was a defect of parties defendant; that several causes of action were improperly joined; and that said amended petition did not state facts sufficient to constitute a cause of action.
    The demurrer was overruled.
    Deming then answered, admitting demand and non-payment of the subscription, the erection of the college buildings, and that the college had gone into operation, but denied other allegations of the amended petition. Eor a second defense, he alleged, that “ on the 15th day of November, 1875, said plaintiff, for a valuable consideration, in writing, released and discharged said defendant, Robert E. Neil, from any and all liability upon his alleged contract in this case, and agreed to take no judgment against said Neil.” A demurrer to this defense was sustained, and Deming excepted.
    The cause was tried to a jury, and resulted in a verdict and judgment for the plaintiff' below; but before the case was finally submitted, the action as against Neil was dismissed. From the bill of exceptions taken upon the trial it appears that the plaintiff below gave evidence tending to show that Deming signed said subscription paper, at the request of one Henry T. Chittenden, opposite the sum of $500, and returned the paper to him to be used for the purpose therein expressed, and no other. That the other subscriptions having been obtained to said paper, Chittenden left the same with said board of trustees; that the board refused to accept the subscription unless Neil, or other parties, would guarantee the payment of the same, and become jointly bound with the subscribers for its payment. That thereupon the guaranty was executed by Neil, without the knowledge or assent of Deming, and annexed to the paper signed by Deming, and made part of the same instrument. That said subscription paper, and the guaranty thereto annexed, wei’e then, upon the consideration therein expressed, accepted by the board of trustees, who, at Neil’s request, withheld knowledge from Deming, for more than a year, of the fact of Neil’s guaranty. The facts that the foregoing evidence tended to establish were, at the trial, admitted by Deming to be true.
    Upon his defense, Deminggave evidence tending to prove, that the college was not located upon the farm of Henry Neil, and adjoining lands, as then proposed, and that the condition contained in the paper signed by him was not complied with.
    Upon the conclusion of the evidence, the defendant Deming requested the court to charge the jury as follows:
    
      First instruction:—“The plaintiff, in the amended petition, alleges that the subscription paper signed by the defendant Deming was, on the 19th day of January, 1871, with the guaranty in writing of the defendant, Robert E. Neil, annexed thereto and made a part of the same instrument, presented to the plaintiff for its consideration and acceptance; that the plaintiff' accepted said subscriptions and guaranty at the same time and place. It is admitted by Deming, on the trial, that the foregoing allegations are true, and that said subscription was attempted to be accepted on the strength of said guaranty, and that the plaintiff would not accept the subscription without the guaranty.
    “Under this state of facts, the contract, if binding on the parties, would be the joint contract of Deming and Neil, as original promissors; of Deming as principal, and Neil as surety.
    •“The subscription paper signed by Deming was an offer on Ms part to become severally bound to pay a certain sum of money on a certain condition.
    “That the plaintiff would not be authorized, without the assent of Deming, express or implied, to chauge his offer to become severally bound into an offer to become jointly bound with Neil; and could not, without the assent of Deming, bind him upon such offer to a joint contract with Neil.
    “A contract to be severally bound, and a contract to be bound jointly with Neil, are materially different in meaning and legal effect.
    “ If, therefore, you find the facts above stated to be true, and you also find that Deming did not propose or consent to become bound jointly with Neil, and did not assent, expressly or impliedly, that his offer to the plaintiff' should be accepted under such circumstances as would make him a joint contractor with Neil, then he is not bound, and the plaintiff can not recover against him.”
    
      Second Instruction.—“ The condition in the subscription paper, ‘that the college be located on the farm of Henry Neil, and adjoining lands, as now proposed,’ etc., is entire, and not apportionable.
    “ If the plaintiff' has not located the college on all the lands then proposed, and the defendant has not waived such performance, then the plaintiff' can not recover.
    “ The court refused to give to the jury either of the instructions requested.”
    But, among other things, did charge that the plaintiff must show, “That the college was located upon the farm of Henry Neil, and adjoining lands, as now proposed (that is, then, at the time defendant signed the paper), just north of the toll-gate, on the Worthington road.”
    The defendant excepted to the refusal to charge as requested, and to the charge as given.
    On error the district court affirmed the judgment of the common pleas. Leave is here asked to file a petition in error to reverse both judgments.
    
      
      Ilarrison, Olds $ Marsh, for the motion,
    contended that the court erred in refusing to give the first instruction prayed- for, and in giving the charge it did on the question embraced in said instructions.
    As to the propositions of law involved in the instruction—
    “1. The subscription paper signed by Deming was an offer on his part to become severally bound to piay a certain sum of money on a certain condition.”
    The language of the subscription is, “The undersigned agree ... to contribute the amounts set opposite their names, herein severally.” This can not mean that one, who subscribes only $100, was jointly bound with another, who subscribed $1,000, for the amount of the latter subscription. Neither of the subscribers agrees jointly with another subscriber, but each severally obligates himself to pay the sum set opposite his name. Moss v. Wilson, 40 Cal. 159.
    2. The next proposition of law in said instruction is, if the subscription paper, signed by Deming, was, on the 19th day of January, 1871, with the guaranty in writing of the defendant, Neil, annexed thereto and made a part of the same instrument, presented to the plaintiff for their consideration and acceptance, and that said plaintiff' accepted said subscriptions and guaranty at the same time and place, and the plaintiff would not accept the subscription without the guaranty, then the contract, if binding on the parties, would be the joint contract of Deming and Neil, as original promissors, of Deming as principal and Neil as surety.
    This is only another way of stating the proposition relied upon by the plaintiff in its amended petition, to make a joint.cause of action against Deming and Neil. In view of the pleadings, evidence, and admissions, it could not have been misunderstood. The consideration is expressed to be the same in the subscription and guaranty.
    This rule of law is well settled in this state by the following cases : Bright v. Carpenter and Sehrier, 9 Ohio, 139; 
      Stage v. Olds, 12 Ohio, 158; Leonard v. Sioeitzcr, 16 Ohio, 1; Robinson v. Abel, 17 Ohio, 36; Gale’s Ad’mr v. Van Arman, 18 Ohio, 336.
    The counsel for the plaintiff below relied upon these cases in the court of common pleas to establish his point then contended for, that Deming and Neil were joint promisors, and that his amended petition did not contain two separate causes of action, one against Deming and the other against Neil, but only one cause of action against both jointly. That court followed said decisions, and ruled accordingly. We are not advised that counsel for the defendant in error will now argue that any of said decisions are wrong.
    
      We submit that if the subscription and guaranty of Neil were accepted in the way stated, with the consent of all the parties thereto, then each separate subscription became the joint contract of Neil and that particular subscriber.
    3. The next proposition of law is, “ a contract to be severally bound, and a contract to be bound jointly with Neil are materially different in meaning and legal effect.” Wallace ft Park v. Jewell, 21 Ohio St. 163 ; Gardner v. Walsh, 5 El. & Bl. 84; McOaughey v. Smith, 27 N. Y. 39 ; 9 B. Mon. 5, 7; Chappdl-Y. Spencer, 23 Barb. 584 ; Henry v. Coats, 17 Ind. 161; Chadwick v. Eastman, 53 Maine, 12.
    The alteration, if binding upon him, of the proposition of Deming, to be solely liable for his subscription, to one to be jointly liable with Neil, would have been prejudicial to him. Under an acceptance of the former, he could have been sued only at the place of his residence, or where he could have been served with summons; under an acceptance of the latter, he might be sued anywhere in this state, where Neil might reside or be served with summous. Adding the obligation of Neil te be jointly bound with him as his surety, could have in no way benefited Deming,however much it might benefit the obligee.
    4. The next proposition of law is: “ The plaintiff would not be authorized, without the consent of Deming, express or implied, to change his offer to become severally bound, into an. offer to become jointly bound with Neil, and could not, without the consent of Deming, bind him upon such offer to a joint contract with Neil. The plaintiff could not, without the consent of Deming, substitute for his proposition or offer, one more satisfactory to it or different from the one made.”’
    Either this proposition is sound, or the adage that “ it takes two to make a bargain ” is fallacious. (Parsons on Contracts, *475, et seq.)
    
    
      John Little, attorney general, and Llewellyn Baber, contra.
    1. If Deming is jointly liable with the defendant, Neil, there is, of course, no misjoinder of causes of action. If the parties are severally liable, the code, sec. 38, provides that they may be included in the same action. Burgoyne v. Ins. and Trust Co., 5 Ohio St. 586, 588, 589.
    The maker and the guarantor of the same instrument taking effect by a single delivery at the same time upon a single consideration and for the same purpose are, in law, original contractors, and may be sued jointly or severally. Code, sec. 80; Stage v. Olds, 12 Ohio, 158,168 ; Leonard v. Swetzer, 16 Ohio, 1; Gales v. Van Arman, 18 Ohio, 336; Kelsey v. Bradbury, 21 Barb. 531.
    2. The plaintiff, by suing them jointly, does not elect to consider the demand joint only as at common law. The contract, under sections 38 and 77 of the code, is still joint and several as to the remedy, and there may be separate defenses and several judgments rendered against either the maker or guarantor, under section 371 of the code. Aucher v. Adams, 23 Ohio St. 550; 5 Ohio St. 589.
    3. The alteration of a note or contract, to vitiate it must be made without the knowledge and assent of the maker, after it has been delivered and taken effect; but the adding of a name, as guarantor, before the delivery of the instrument does not affect the obligation of the maker. Fullerton v. Sturgis, 4 Ohio St. 536; 5 El. & B. 82; Byles on Bills, 322; Wallace § Park v. Jewell, 21 Ohio St. 163.
   Boynton, J.

The objections taken by the demurrer to-the amended petition are the same as those made in Neil v. The Board of Trustees of the Ohio Agricultural and Mechanical College, ante, 15. They relate to the defendant’s capacity to sue, to a nonjoinder of necessary parties, to a misjoinder of causes of action, and to the-sufficiency of the facts stated to constitute a cause of action. The questions thus raised are substantially identical in the two cases, and it will appear from what was there' said, that the objections here made were properly overruled. Counsel for the plaintiff' in error, in argument, say : “ Our main contention has been, and still is, that the-court erred in refusing to give the first instruction prayed. for, and in giving the charge it did on the questions embraced in said instructions.” The instruction prayed for-amounted to this: That the subscription and guaranty annexed, having been received and accepted by the defendant-at the same time, on the same consideration, and for the sanie purpose, constituted a joint contract, and Deming' and Neil original, joint promisors; and that inasmuch as-Deming only proposed to become severally bound, and not-jointly, and had no knowledge of, and gave no assent to, the guaranty of the payment of his subscription by Neil,, the character of the obligation he assumed was materially altered without his assent, whereby he was discharged, from all liability thereon. If it be true that the relation of Deming and Neil to the contract of subscription constituted them, in law, joint promisors merely, there would be-much reason to support the proposition, that, under the-facts assumed to exist in the prayer requested, Deming was., discharged from liability by reason of the alteration of the-obligation he contracted. Wallace and Park v. Jewell, 21 Ohio St. 163. But we are all agreed in the opinion that-the respective obligations assumed by Deming and Neil-were several and not joint. The promises made were not-promises by the two to do the same thing, nor to perform the same act. The obligation of the one was principal;, "the other was accessary. Deming agreed, not only with "the college, but with his co-subscribers, that, on compliance by the defendant with the conditions named, that he would pay to the college the sum of $500. Neil undertook that if the trustees would accept Deming’s promise, and comply with said conditions, Deming should perform the promise he had made to pay the sum subscribed. If Deming failed to perform, Neil’s liability to respond in damages at once attached, but as a legal consequence of a breach of his own agreement. The action against him could not be for a breach of a promise to pay, but for a breach of a promise that Deming should pay. The question, in a legal point of view, is not materially different from what it would be, if the principal undertaking had been to erect a dwelling-house, and the surety had guaranteed the performance of the undertaking, Failure to build, in such case, by the principal, would have imposed ■no duty on the guarantor to erect the dwelling. His duty would be to pay the damages resulting from a breach of his undertaking, given for the performance of the obligation of another.

The fact that the board of trustees, in accepting the instrument, supposed that its terms created the joint obligation of Deming and Neil for the payment of Deming’s ■subscription, can not affect the interpretation of the contract. The case does not belong to the class holding oral •evidence to' be competent, to show the relation to the paper, a stranger, who indorsed it in blank at the time of its execution, thereby intended to assume. Champion v. Griffith, 13 Ohio, 228; Robinson v. Abell, 17 Ohio, 36; Seymour v. Mickey, 15 Ohio St. 515. Here there was no blank indorsement. The character of the liability incurred was •defined by clear and decisive language, bringing the case clearly within the rule that requires the relation to be ascertained, and the intention to be gathered, from the terms of the instrument, without the aid of extrinsic evidence. Neil v. The College, ante, 15.

But it is said that the question of the joint character of the obligation sued on is not an open one; and in holding that the subscription and guaranty, although accepted at the same time, and to effect the same object, create several .and not joint obligations, we are not insensible to the fact, that the claim, that the instrument sued on, as a whole, embodies a joint contract to pay the sum subscribed, finds strong color of support in Gale’s Adm’r, v. Van Arman, 18 Ohio, 336, if not in Leonard v. Sweetzer, 16 Ohio, 1.

In the case last cited, Martin bound himself to pay the half of a certain judgment in favor of the Clinton Bank of Columbus agaiust Joseph Leonard and others, and to .save Leonard harmless from all costs. Sweetzer “guar.anteed the fulfillment ” of the contract by Martin. In disposing of the case, the court say : “ We regard the defendant Sweetzer as an original contractor. The paper was executed by himself and Martin, both at the same time, Martin signing first, and Sweetzer connecting with his signature just enough to show that he contracted as surety. Indeed, he is liable in this case precisely as he would have been if he had barely written the word ‘surety’ after his name.” In Gale’s Adm’r v. Van Arman, Van Arman sold and agreed to deliver to Gale, upon the opening of navigation, three cases of brass clocks, each case to contain six clocks. At the same time Hopkins indorsed on the back thereof a guaranty of the “fulfillment of the within contract,” and subscribed his name thereto. In a joint action .against Van Arman and Hopkins, it was said by the court, that the only question presented for determination was whether the action “was properly brought against Van Arman and Hopkins as, joint contractors.” This question the court proceeded to answer, by saying, that “ a majority ■of the court regard the question as settled by repeated adjudication in our own state.” Bright v. Carpenter, 9 Ohio, 139; Stage v. Olds, 12 Ohio, 158, and Leonard v. Sweetzer, supra, were the adjudications relied on as supporting the ruling. Hitchcock, C. J., in a dissenting opinion, reviewed the cases so relied on as sustaining the judgment ■of the court, and others bearing on the question made, and reached a conclusion from them directly adverse to that of the majority of the court.

It is to be borne in mind, that the court, in considering-the joint character of the contracts sued on, in those two cases, was dealing with a question of remedy. The point-in contention involved the right to maintain a joint action against the parties signing the instrument. No question affecting the validity or integrity of the contract by reason-of alteration was involved. No such question was considered. And while it may be true, that under the law existing at that time, and then governing the practice, a joint liability was essential to a joint action, it does not necessarily follow that the court would have held, had the guaranty, in those cases, been taken without the knowledge of the principal makers, that such fact effected their discharge from liability. But however this may be, it is clear to us, upon principle and authority, alike, that where the indorser, at the time of executing his undertaking, prescribes or limits the extent or character of his liability, no construction, of the contract will be adopted which will enlarge his obligation, or change the liability assumed. Bright v. Carpenter, Seymour v. Mickey, supra. This is but conceding to a-party the right to make his own contracts, and to measure the extent of the obligation he is willing to incur. The-application of this rule to the present controversy results-in holding, that the guaranty by Neil of Deming’s debt, although made at the time the debt was contracted, did not constitute them joint promisors, nor effect such an. alteration of Deming’s contract, as operated, in law, to-discharge him from liability.

The demurrer to the second defense was properly sustained. A discharge of a surety by the creditor does not-affect the liability of the principal debtor.

The instruction of the court, that before the plaintiff below could recover, it must be shown that the college was located on the farm of Henry Neil, and adjoining lauds, as proposed at tlie time the subscription was made, just north-of the toll-gate on the Worthington road, was a correct ¡statement of the rule, and was all the defendant had the right to require. It is sufficient to say, of the remaining .assignments of error, that we do not deem them well taken.

Motion overruled.  