1. The petitioner seeks to revise the decree of the Subordinate Judge of Cocanada in S.C.S. No. 324 of 1922.
2. The plaintiff sued to recover Rs. 402-11-6. Defendants Nos. 1 and 2 who were immediately liable remained ex parte, and the suit was contested by the 3rd defendant who had executed a letter of guarantee, Ex. C. The learned Judge has found him liable under this letter; and the question for determination is whether inasmuch as the letter begins with 'Manem Ayyamma and Dentu Setti Basavalingam offer respects,' continues, 'In case moneys is not realised * * * * *we agree to pay the said amount,' and is signed only by Manem Ayyamma, Manem Ayyamma can be held responsible or whether, on the other hand, it should be held, that Manem Ayyamma only contracted to be held responsible in case Dentu Setti Basavalingam also signed the letter. The learned Judge lays down the law on the point as follows:
In a case of this kind the person that actually executed the document would be liable unless it was intended that if the other persons did not join, his liability should not subsist.
3. It is contended on behalf of the petitioner that in such cases there is a presumption that the person who signed the document singly did not intend to beheld responsible unless the others joined. In support of this argument the remark of Brett, L.J., in Ex parte Harding, In re Smith Fleming & Co. 41 L.T. 517 : 28 W.R. 158 is cited.
And, therefore, the doctrine that one of a number of sureties who signs a guarantee only agrees to be liable in case all the others sign, has no application.
4. I have not been able to find this doctrine laid down elsewhere to the effect that there is a presumption that one of a number of sureties who signs a guarantee only agrees to be liable in case all the others, sign. In Cunningham and Shepherd's Commentary on the Indian Contract Act, 11th Edition, page 36, it is observed that: Apparently it may be presumed that a party who has executed a bond did not intend to be bound unless the other person mentioned also executed it when the contract is in the nature of a guarantee.' The learned commentators refer for authorities to their note on the actual Sections 144 But there I only find it laid down as follows:
It appears to be a question of fact whether a promissor who has executed a bond which is in form joint is intended to be bound only if the other person named in it has also executed it,' and the, English authorities to which my attention has been drawn seem to bear out that there is no presumption. In Coyle v. Elphick (1874) 22 W.R. 541 , Blackburn, J., says: 'There is no authority for saying that because a deed contemplates several parties joining as co-sureties, therefore, one of them does not bind himself if he signs unless the others also sign.' There is no authority for such a contention.
5. A note in Lord Halsbury's Laws of England, Vol. 15 page 469, para. 901 is to the same effect.
A guarantee drawn up in the plural number, and concluding as witness our hands but signed by one surety only, is binding on the surety who signed it Norton v. Powell 11 L.J.C.P. 202 . Where, however, one surety expressly or impliedly stipulates that the other surety shall also sign, this amounts to a condition precedent which must be fulfilled.'
6. Therefore, it is incumbent on the petitioner in this case to prove that he did so stipulate. The learned Subordinate Judge is not quite correct in stating:
There is no evidence which goes to show that at the time of the contract the 3rd defendant expressly excluded his liability if his partner D. Basavalingam should not agree to sign therein.
7. What he means is that there is no evidence apart from the statement of the 3rd defendant as D.W. No. 11 and evidently he was not prepared to accept that statement without corroboration. I find, therefore, that there is neither presumption nor proof that the 3rd defendant was only to be bound in case his partner also joined. In these circumstances there is no reason to revise the decree of the lower Court.
8. The respondent has never based his case on the fact that the 3rd defendant and his partner constituted the firm and, therefore, the omission in the plaint to name them as such is, as the learned Judge remarks not of much importance.
9. The petition is dismissed with costs.