Kritzer v. Mills. "Three months after date, I promise to pay to John Kritzer the sum of five hundred dollars, with interest, at two per cent. per month, from date. Value received. (Signed.) "SHAW'S FLAT, October 8, 1856." "JOHN MILLS. "DAVID COUN. The defendant Coun, in his answer, admits the execution of the note, but alleges that he signed it as surety, and that plaintiff knew that fact at the time of the execution of the note. He also avers that he was entitled to notice of the non-payment, and that plaintiff did not use diligence, etc., to collect the note from defendant Mills. On the trial, the defendant Coun offered parol evidence to prove the facts set up in his answer, and the Court allowed the same to go to the jury. The Court instructed the jury as follows: " If the jury believe from the testimony that defendant Coun executed the note as security, and for the accommodation of defendant Mills; and that the plaintiff, Kritzer, knew the same at the time of execution, and that defendant Coun did not have due notice of demand and non-payment, they must find for the defendant." To which instruction, plaintiff excepted. Heslep, Platt, and Dorsey, for Appellants. The Court below erred in admitting testimony tending to show that respondent, David Coun, was surety in the note sued on. 1. Because the contract on which the suit is founded is perfect and complete, and the admission of such testimony tended to change the character of the contract, or create a new contract. 1 Green., chap. XV, §§ 275, 276, pp. 351, 352. Parol evidence is inadmissible, to vary the terms of a written contract. Lennard v. Vischer, 2 Cal., 37. 2. The Court erred in the instructions given to the jury First-Because the note explained itself, and though he was only surety on the note, his contract as an original promissor was not thereby changed. 1 Story on Prom. Notes; Humphry v. Crane and Yale, 5 Cal., 173. Second-Because, if only a surety, the contract was that of a promissor, and this case is not aided by the cases of Lawrence et al. v. Lightstone et al., 4 Cal., 277; for in that case Lawrence was a guarantor, therefore, his liability was secondary. So, in the case of Riggs v. Waldo, 2 Cal. In the case, Bryan v. Berry, 6 Cal., 394, the question was upon the authority of the agent, who signed the note for the principal, whilst his authority only extended to signing as surety. Hunter & McNeil for Respondents. Ortman v. Dixen. The note, sued on, is written in the singular number, but signed by both defendants. Parol evidence, under exception, was admitted to show that defendant Coun signed the note as surety, and that fact was known to Kritzer. The evidence did not tend to alter or vary the terms of the note, but merely to show the relation of the parties, and hence the exceptions were properly overruled by the Court. 13 Mass., 131. When one of two promissors annex the word "surety" to his signature, the description does not alter the legal effect of the contract, but merely indicates the relation in which the parties stand to each other, and notice of such relation to the holder. But the fact of such relation and notice, if to the holder, may be proved by extrinsic evidence. It is not to affect the terms of the contract, but to prove a collateral fact, and rebut a presumption. 21 Pick., 195. This Court has heretofore recognized the principle here contended for, doing away with all nice distinctions, and fixing the liability of endorser or surety without regard to where his signature is written, upon the common sense principle, that when his liability is secondary, that fact is known to the holder, he is entitled to all the rights of an endorser. BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring. This was an action upon a promissory note executed by defendants. The defence set up by Coun, was, that he was only a surety for Mills; that plaintiff neglected to bring suit in due time, and that no notice of demand and protest was given. Mere neglect to sue is no defence. (5 Cal., 173.) The defendant Coun was not entitled to notice. The note was signed "John Mills," "David Coun." There was nothing upon the face of the note to show that Coun was a surety, and this case does not fall within the doctrine laid down in the cases of Riggs v. Waldo, 2 Cal. R., 485; Lightstone . Lawrence, 4 Cal., 277; and Bryan v. Berry, July T., 1856. Judgment reversed, and cause remanded, and the Court below will render judgment for plaintiff. MANDAMUS. ORTMAN et al. v. DIXON et al. This was an application to this Court for a writ of mandamus Adams v. Woods & Haskell. against William T. Barbour, Judge of the Tenth Judicial District, to compel him as such Judge, to issue his writ of attachment against the defendants, for contempt in disobeying an injunction issued by said District Court. This is an agreed case. T. B. Reardon for Plaintiffs. BURNETT, J., delivered the opinion of the Court-TERRY, C. J., concurring. Application for mandamus to the Judge of the Yuba District Court. This was a chancery suit, in which a decree was rendered for plaintiffs, perpetually enjoining the defendants from diverting the waters of Mill Creek. Pending a motion for a new trial, the defendants violated the injunction, and plaintiffs applied for an attachment against them for contempt of Court, which was refused upon the ground that the pending of the motion operated as a suspension of the injunction. We think that this was error. Let a peremptory mandamus issue. ALVIN ADAMS v. WOODS & HASKELL.-T. A. LYNCH et al., Intervenors. The filing of a bill by one partner against his copartners for a dissolution and account, and praying for an injunction and receiver, and an appointment of a receiver by the Court, does not prevent a creditor from proceeding by attachment, and gaining a priority over other creditors, until a final deeree of dissolution and order of distribution. It is only in cases of insolvency, that the equitable rule for a pro rata distribution will apply, and then as of necessity. If the firm be solvent, a creditor whose claim is due cannot be placed on a par with others whose claims are not yet due, or who have been less diligent in securing claims already due. Funds in the hands of a receiver, in a suit for dissolution, are therefore subject to attachment at any time before a final decree of dissolution and distribution. APPEAL from the District Court of the Fourth Judicial District. The facts in this case are the same as those in the case of Adams v. Woods & Haskell, decided at the July Term, 1857, of this Court. (7 Cal. R.) By stipulation of counsel, the record in that case is made a part of the statement in this. J. A. McDougall for Appellant. In this case, a decree was rendered distributing the moneys to all the creditors pro rata, regardless of the claim of the inter venors. The intervenors brought this case, by writ of error, to this Adams v. Woods & Haskell. Court, when the whole question of intervenor's rights, as attachment and judgment-creditors, was discussed and the law settled by the Court. Adams v. Haskell, July Term, 1857. The Court below makes the same decree from which the intervenors had before appealed, thus ignoring the ruling of the Supreme Court. Intervenors insist that they are entitled to an order of distribution to the attaching-creditors in the order of the priority of their respective liens. Shafter & Park for Respondents. BURNETT, J., delivered the opinion of the Court-FIELD, J., concurring. In the matter of the intervention of T. A. Lynch and others. This case, in its different aspects, has been repeatedly before this Court. We had supposed, that in the different opinions heretofore delivered, principles had been laid down, by the legitimate application of which, all questions arising in the Court below could have been decided. As, however, our views have not been correctly understood, we find it necessary to re-state them more explicitly and more in detail. The case of these intervenors was before us in July, 1857. The orders of the District Court, made in December, 1856, and up to the fifth of January, 1857, were before us, on writ of error. The order, directing a pro rata distribution, made May 5th, 1856, and the order refusing to stay proceedings of April 28th, 1856, were before us on appeal. These cases were argued and submitted together. The intervenors placed their right upon two grounds; first, fraud on the part of the copartners, in bringing the suit; second, priority by virtue of intervenors' attachments. As stated in the opinion of the late Chief Justice, delivered at the July term, 1857, "the Court below permitted the intervention to be filed, but refused to stay proceedings in the case or afford the parties any affirmative relief, but directed the receiver to proceed and distribute the money in his hands pro rata among the creditors; from which orders and rulings the intervenors have appealed." The appeal having been taken from all the orders and rulings, and the reversal being general, necessarily applied to all. As stated in the opinion, the "case made involved two propositions; first, whether a creditor of the firm could pursue his remedy at law, after the bill was filed and the receiver appointed, but before a decree of dissolution; and second, whether a creditor could attack the whole proceeding, on the ground of fraud and collusion between the parties.' Both of which propositions we decided in the affirmative When the verified bill of intervention was filed, the Court below, conceding its allegations to be true, decided that the intervenors Adams v. Woods & Haskell. were not entitled to the affirmative relief demanded. Upon appeal to this Court, we decided that, if these allegations were true, either as to the fraud charged, or as to the attachments, then they were entitled to priority of payment out of the fund in the hands of the receiver. The case was remanded, for the purpose of ascertaining the truth of those allegations. The Court below appointed a referee to ascertain and report the facts. The referee reported the facts to the Court, showing the names of the attaching-creditors; the amounts of the various writs of attachment and the judgments rendered thereon, and the time when they were served upon Cohen, the receiver. This report was confirmed by the Court "without prejudice to such further consideration as to its effect, as might be given it upon final decree.” The Court afterwards rendered a decree that the fund be distributed pro rata among the creditors, and denying the right of the intervenors to any priority in the distribution of the fund, and the intervenors appealed. In the opinion delivered by the Chief Justice, reference is made to the views expressed in my opinion in the case of Adams & Co. v. Hackett & Casserly, January Term, 1857, and those views expressly adopted. In this opinion it was said: "From these cases, it seems to be settled that, until a dissolution has been judicially declared, and a receiver ordered to make a pro rata distribution of the partnership assets among the creditors, they are not prevented from resorting to adverse proceedings; and that, when a creditor does resort to such proceedings, he may thereby gain a preference over those creditors who are less diligent." And in the opinion of the Chief Justice, it was said: "From this it must necessarily result, that the intervenors having acquired a lien upon the property of Adams & Co., by attachment and judgment, prior to the decree of dissolution, are entitled to the fruits of their judgment, and must be first paid." In the opinion delivered by the Chief Justice, it was held, that "the possession of the receiver was only of such a character as the Court could invest him with in the case made by the bill." The bill of Adams did not allege either a prior disssolution, or the insolvency of the firm. It prayed for a dissolution; an injunction; an accounting; the appointment of a receiver; and the application of the assets to the copartnership debts. Conceding the facts stated in the bill to have been all true, as alleged, the case made by it did not authorize a pro rata distribution. It is only in cases of insolvency that this equitable rule can apply. If the firm be solvent, then all the creditors can be paid in full; and there can be no ground for delaying those creditors whose claims are already due, and putting them on a par with those whose claims are not yet due, and requiring all to wait for a distribu |