#### A. P. FURR v. JOHN TRULL, W. A. BROWN, and HENRY M. WINECOFF.

(Filed 22 November, 1933.)

1. Trial F a — Form and sufficiency of issues.

Where tbe issues submitted by tbe trial court to tbe jury arise upon tbe pleadings and are sufficient in form to enable tbe parties to present to tbe jury all phases of tbe controversy, and tbe answers to the issues are sufficient, wben taken with tbe admissions of the parties, to enable tbe court to proceed to judgment, an exception to tbe issues will not be sustained on appeal.

2. Bills and Notes H c — Issues submitted in this action on note held sufficient.

Where from tbe admission of tbe parties in an action on a note tbe action would be barred by tbe statute of limitations if it should be determined that defendants were sureties on tbe note and not comakers, tbe submission of issues presenting solely whether each was a surety or comaker is sufficient.

3. Bills and Notes O b — As between original parties it may be shown by parol that parties signed as sureties and not comakers.

In an action by tbe payee of a negotiable note under seal, appearing upon its face to have been signed by several makers, it may be shown upon tbe trial by parol evidence that with tbe knowledge of tbe payee before bis acceptance only one of them signed as tbe original obligor, and that tbe others signed as sureties only, entitling tbe sureties to tbeir release upon tbeir defense of tbe statute of limitations. O. S., 441(1).

*418Appeal by plaintiff from GowpeoSpecial Judge, at March Special Term, 1933, of CabaeRus. No error.

This action was begun on 13 June, 1932. It is alleged in tbe complaint that tbe defendants are indebted to tbe plaintiff in tbe sum of two hundred and thirty dollars, with interest from 1 March, 1927, for money loaned by plaintiff to the defendants, as evidenced by their promissory note, which is in words and figures as follows:

“$230.00. Concord, N. C., 1 March, 1927.

On demand after date for value received, I, we, or either of us, promise to pay to the order of A. P. Furr, two hundred thirty dollars, negotiable and payable at the Citizens Bank and Trust Company, Concord, N. C., with interest at the rate of six per cent per annum from maturity until paid, and the sureties and endorsers hereby waive protest, notice of protest and notice of nonpayment hereof, and guarantee the payment of this note at maturity or any time thereafter, and consent that the time of payment may be extended without notice thereof, and agree to remain bound for its payment until paid in full.

John Trull. (Seal.)

W. A. Brown. (Seal.)

Henry M. Winecoff. (Seal.)

Witness: Geo. W. Prather.”

The plaintiff demanded judgment that he recover of the defendants, and each of them, the sum of two hundred and thirty dollars, with interest from 1 March, 1927, and the costs of the action.

No answer was filed by the defendant, John Trull. The defendants, W. A. Brown and Henry M. Winecoff, in their answer, admit, the execution by them of the note sued on; they deny that they or either of them is indebted to the plaintiff, as alleged in the complaint. They allege that each of said defendants signed the said note as a surety for the defendant, John Trull, and that at the time the said note was delivered to him, the plaintiff knew that they had so signed the said note. The said defendants plead the three-year statute of limitations in bar of plaintiff's recovery in this action and prayed judgment that plaintiff recover nothing of them, and that they go without day, and recover their costs. ‘

At the trial, the answering defendants admitted the execution of the note offered in evidence by the plaintiff, and testified that they signed the said note as sureties of the defendant, John Trull, and that plaintiff knew at the time the said note was delivered to him that they and each of them had so signed the said note. The plaintiff offered evidence in contradiction of the testimony of the said defendants.

*419Tbe issues submitted to tbe jury were answered as follows:

“1. Did tbe plaintiff, A. P. Furr, know before be received tbe note sued on and loaned tbe money, tbat W. A. Brown was a surety ? Answer: Yes.

2. Did tbe plaintiff, A. P. Furr, know before be received tbe note sued on, and loaned tbe money, tbat Henry M. "Winecoff was a surety? Answer: Yes.”

From judgment tbat plaintiff recover of tbe defendant, John Trull, wbo failed to file an answer to tbe complaint, tbe sum of two hundred and thirty dollars, with interest from 1 March, 1927, and tbe costs of tbe action, and tbat plaintiff recover nothing of tbe defendants, W. A. Brown and Henry M. Winecoff, the plaintiff appealed to tbe Supreme Court.

H. S. Williams and E. T. Bost, Jr., for plaintiff.

Hartsell & Hartsell for defendants.

CoNNOr, J.

Tbe issues submitted to tbe jury at tbe trial of this action arise upon tbe pleadings; they Avere sufficient in form to enable tbe parties to present to tbe jury their respective contentions both as to tbe law and as to tbe facts urvolved in tbe controversy between tbe parties out of Avhich tbe action arose; and are sufficient, when considered in connection Avith tbe admissions of tbe parties in tbe pleadings and at tbe trial, to support tbe judgment. It has been held by this Court tbat where tbe issues submitted by tbe trial court to tbe jury arise upon the pleadings, are sufficient in form to enable tbe parties to tbe action to present to tbe jury all phases of tbe controversy be-tAveen them, and Avhen answered by tbe jury are sufficient to support a judgment, there is no ground for exception to tbe issues. Bank v. Bank, 197 N. C., 526, 150 S. E., 34, Bailey v. Hassell, 184 N. C., 450, 115 S. E., 166, Potato Co. v. Jeanette, 174 N. C., 236, 93 S. E., 795, Power Co. v. Power Co., 171 N. C., 248, 88 S. E., 349, McAdoo v. R. R., 105 N. C., 140, 11 S. E., 316. Tbe exceptions to tbe issues submitted by tbe trial court to tbe jury in tbe instant case, over tbe objections of tbe plaintiff, and to tbe refusal of tbe court to submit tbe issue tendered by tbe plaintiff, cannot be sustained.

There was no error in tbe instructions of tbe court to tbe jury with respect to these issues. Assignments of error based on exceptions to these instructions are not sustained. Tbe contentions of tbe parties both as to tbe law and as to tbe facts involved in these issues were fully and fairly submitted by tbe court to tbe jury, and tbe judgment in this action must be affirmed, unless, as contended by tbe plaintiff in this Court, there was error in overruling bis objections to parol evidence *420offered by the defendants in support of their contention that each of them signed the note sued on as a surety for the defendant, John Trull, and that plaintiff knew, when he received the said note and loaned the money, that the defendants had so signed the note.

In Welfare v. Thompson, 83 N. C., 276, it is said by Ashe, J., that the authorities are very uncertain and conflicting upon the question whether or not it may be shown by parol that a joint promisor or obligor was in fact a surety. “Some of the authorities hold that in law it cannot be done, but is a defense available in equity, and the proof is admissible whenever equitable pleas are allowed in courts of - law, and especially in our system, where the distinctions between actions at law and suits in equity are abolished.” It is held in that case that parol evidence is admissible to show that a party to a note, although on its face a comaker or coobligor, is in fact a surety, and that when such fact is known to the payee or holder at the time he accepts the note, the party is liable only as a surety. This principle is now well settled as the law of this State. Barnes v. Crawford, 201 N. C., 434, 160 S. E., 464, and cases cited in the opinion in that case. There was no error in the admission of parol evidence at the trial of this action tending to sustain the contentions of the defendants. On the facts admitted in the pleadings, the action is barred as against the answering defendants, although they signed the note under seal. C. S., 437, C. S., 441(1). Barnes v. Crawford, supra. These defendants were liable to the plaintiff as sureties, and not as guarantors. The words in the note 'by which the parties guarantee its payment do not affect their liability, as principal and sureties, respectively. Rouse v. Woolen, 140 N. C., 557, 53 S. E., 430. The judgment is affirmed.

No error.