This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether the addition of a surety or co-obligor without the consent of the principal avoids the contract as to him is a question upon which the courts have divided. The weight of authority is that such alteration discharges the principal.1 The party signing last is, of course, bound even if the principal resists liability successfully, provided such party understood the circumstances under which he signed.2 Still less does such addition release the party last signing if the principal does not resist the enforcement of liability against himself.3 Other authorities hold that the addition of a surety without the principal's consent does not discharge the principal.4 The English courts at first held that such addition did not discharge the original maker;5 but this case was subsequently overruled and the view that the principal was discharged was adhered to.6 The supreme court of the United States has laid down the rule that the addition of the name of a surety does not discharge the principal,7 The real question involved was whether such alteration discharged a mortgage given to secure such altered note, and it was held that the mortgage was not discharged. Accordingly, the holding in Mersman v. Werges has subsequently been treated as an obiter by the circuit court;8 but this case was reversed by the circuit court of appeals.9 The additional signature in this case was, however, that of a guarantor, which is not a material alteration.
Browning v. Gosnell, 91 la. 448, 59 N. W. 340; Wallace v. Jewell, 21 O. S. 163, 8 Am. Rep. 48.
Contra, Brey v. Hagan, 110 Ky. 566, 96 Am. St. Rep. 464, 62 S. W. 1.
4 Holt County v. Scott, 53 Neb. 176, 73 N. W. 681 (especially where the later sureties are rejected).
5 Bowser v. Rendell, 31 Ind. 128.
6 McCaughey v. Smith, 27 N. Y. 39. (Held by a divided court, a majority of which did not agree on any legal proposition not to discharge an in-dorser.) Hecker v. Mahler, 64 O. S. 398, 60 N. E. 555.
1 Alabama. Brown v. Johnson, 127 Ala. 292, 85 Am. St. Rep. 134, 51 L. R. A. 403, 28 So. 579 [overruling Montgomery Railroad Co. v. Hurst, 9 Ala. 513; Rudolph v. Brewer, 96 Ala. 189, 11 So. 314].
Illinois. Soaps v. Eichberg, 42 III. App. 375.
Indiana. Nicholson v. Combe, 90 Ind. 515, 46 Am. Rep. 229.
Kentucky. Shipp v. Suggett, 48 Ky. (9 B. Mon.) 5; Singleton v. McQuerry,
85 Ky. 41, 2 S. W. 652.
Missouri. Lunt v. Silver, 5 Mo. App. 186.
Texas. Harper v. Stroud, 41 Tex. . 367; Ford v. Bank (Tex. Civ. App.), 34 S. W. 684.
2 Favorite v. Stidham, 84 Ind. 423; Hamilton v. Hooper, 46 la. 515, 26 Am. Rep. 161; Browning v. Gosnell, 91 la. 448, 59 N. W. 340.
3 Brownell v. Winnie, 29 N. Y. 400,
86 Am. Dec. 314.
4 Alabama. Montgomery Railroad Co. v. Hurst, 9 Ala. 513; Rudulph v. Brewer, 96 Ala. 189, 11 So. 314.
Kentucky. Evans v. Partin (Ky.), 56 S. W. 648.
Michigan. Union Banking Co. v. Martin, 113 Mich. 521, 71 N. W. 867.
Nebraska. Bank v. Job, 48 Neb. 774, 67 N. W. 781; Royse v. Bank, 50 Neb. 16, 69 N. W. 301.
Ohio. Hecker v. Mahler, 64 O. S. 398, 60 N. E. 555.