
    Stevens & Pillet v. West & Hamilton.
    A and B made their promissory note to C, who indorsed it to D and E. A had also signed the note as one of the makers, and added the word “ security” to his name. It was held, that adding the word “ security” did not change the liability of A. The remedy of A is in a suit against the contracting parties for contribution, and not on the special contract.
    IN error to Wilkinson county.
    This was an action of assumpsit brought by plaintiffs as indor-sees of a promissory note executed by defendants and C. C. West, one of the plaintiffs, as “ security.” The defendants pleaded several pleas of the general issue, and the jury found a verdict for the plaintiffs. On the trial, the plaintiffs offered in evidence the note sued on, signed “Stevens & Pillet,” “ C. C. West, security:” the defendant, Pillet, then proved by a witness the signature of “ C. C. West,” and that he was the same C. C. West named as co-plaintiff on the record. This was all the testimony offered. The defendant, Pillet, called on the court to charge the jury that “ if they believed from the testimony, that C. C. West, whose .name is signed to the note sued on, is the same man who is one of the plaintiffs in this action, and he signed the note, the plaintiffs cannot recover.”
    The judge refused to give the charge to the jury, and the defendant Pillet- filed his bill of exceptions.
    There was a motion by defendant for a new trial, which was overruled. The grounds of the motion are not shown on the record.
    Webber and Dunn, for plaintiff in error.
    Boyd, contra.
    
    Under our statutes, cither party to a joint, or a joint and several note, (makers,) may be sued. The obligation is made several.
    When West & Hamilton purchased the note sued on, of the payee, they purchased a right to sue either the endorser or makers. The remedy against the surety might be released, without releasing the principals, Stevens & Pillet. It is not easy to see how Stevens & Pillett could have resisted a suit brought by West alone, if he had been the sole purchaser of the note from the endorser. They could claim no contribution from him, for his signature was expressly as security on the face of the note. His own liability would have been merged by such a purchase, but there is no good reason why the principals should not be liable to him as an endorsee. There would be no conflict or inconsistency in such case, between his right to sue as an endorsee, and his right to claim an account for money paid, laid out and expended.
    But the note was purchased by West & Hamilton,. and not by West alone. West & Hamilton constituted an artificial person in law, distinct from the identity of either of them. The purchase by them of the note, for full value, not only did not release Stevens & Pillet from their liability on the note, it did not even release West himself. If West & Hamilton had sued the payee, who was the endorser to them, she could certainly have sued Stevens & Pillett, or West, or both, on the note. West & Hamilton must be considered as standing precisely in the place of the payee, and were clothed with all her rights. Their liabilities would also have been the same, had they endorsed it over to some third person. Again, if the note had been originally made by West, alone, to West & Hamilton, they could have maintained their action against him. One partner may execute his note or bond to the firm of which he is a member, for any liquidated amount, and he will be liable on such note or bond, either to the firm, or any subsequent endorsee. So, a firm may execute their note or bond, to one of their members, and it will be good. Such proceedings cannot be had for uncertain or open accounts, or fluctuating demands, growing out of the ordinary course of the partnership dealings. But when the accounts are reduced to a certainty, or the balances liquidated, there is no objection to them, and they are recognised and permitted in law.
    The case frequently arises on bills of exchange, drawn between this state and Louisiana, on which the branches of different firms, or the individuals composing them, become the different parties, as drawers, acceptors and endorsers. So, of notes similarly secured, and official bonds given for the performance of trusts. They are sustained by the principles and authorities referred to, or by common custom of merchants.
    If, then, West could have been sued by the firm of West & Hamilton, there can be no doubt of the correctness of the decision of the court below.
    The positions first taken are believed, however, to be sufficient to sustain that decision.
   Mr. Chief Justice Shakket

delivered the opinion of the court.

The plaintiffs in error made their promissory note to Mrs. Con-nell, who indorsed to West & Hamilton. West had also signed the note with the other makers, and added to his name the word “ security.” The only question is, can the action be sustained by West & Hamilton as plaintiffs, on the note which West had signed as above stated? West can be regarded in no other light than as a joint maker, and the mere addition of the word security at the end of his name, did not change the nature of his original liability, nor is it evidence in itself, that he stood in that relation to the other contracting parties.

When he paid the note, therefore, he was only discharging his own contract and liability, and he had a right to resort to his proper remedy against the other contracting parties for contribution; but his remedy was not on the special contract, it originated from the fact that he had discharged that contract.

If he was in reality only a security, and if his being so would give him a remedy on the note, yet he has failed to show it, and in the absence of any such showing, he cannot recover on the note, it being a contract on which he was equally bound to discharge, and’the breach of which was equally a breach of his own duty.

The judgment must be reversed, and venire de novo awarded.  