Menaugh v. Chandler

89 Ind. 94

• Court: Indiana Supreme Court
• Decided: November 15, 1882
• Docket: No. 9495
• Status: Published

Opinion

Elliott, J.

The appellants executed to the appellees a promissory note containing the following stipulation: “All whose names are signed to or endorsed upon this note expressly agree to be held as principal debtors.” The appellant Menaugh bought a claim against the appellees, and insists upon his right to set it off against the note.

The stipulation in the note precludes Menaugh from asserting that he is a surety. It is a general rule that a party can not contradict his own note or bond. Miller v. Elliott, 1 Ind. 484; Hiatt v. Simpson, 8 Ind. 256; Madison, etc., Co. v. Stevens, 10 Ind. 1. In accordance with this elementary principle it is held that one expressly agreeing to be bound as principal is estopped from asserting as against the obligee, that he is a surety. Sprigg v. Bank, 10 Peters, 257; Sprigg v. Bank, 14 Peters, 201; Dart v. Sherwood, 7 Wis. 446; Waterville Bank v. Redington, 52 Maine, 466; Heath v. Derry Bank, 44 N. H. 174; Derry Bank v. Baldwin, 41 N. H. 434.

A set-off can not exist where there is no mutuality. A claim in favor of one only of several defendants can not be set off against a note executed by them. Knour v. Dick, 14 Ind. 20; Blankenship v. Rogers, 10 Ind. 333; Jones v. Diver, 22 Ind. 184; Griffin v. Cox, 30 Ind. 242; Dodge v. Dunham, 41 Ind. 186; Gordon v. Swift, 46 Ind. 208; Harris v. Rivers, 53 Ind. 216.

Opinion filed at the November term, 1882. Petition for a rehearing overruled at the May term, 1883.

Our statute creates in favor of sureties an exception to this rule; but the appellant Menaugh can not avail himself of the benefit of this exception, for the reason that he has concluded himself by his agreement to be bound as principal. One who expressly agrees that he is a principal, and undertakes as such,, can not claim a right to a set-off under the statute applicable-to sureties.

Judgment affirmed.