Means v. Worthington (147 S.W. 345, 1912)

PETICODAS, C. J.

Suit upon a promissory note by W. L. Means, plaintiff, against J. M. Worthington, defendant; note signed by I. W. Van Pelt and. J. M. Worthington. Plaintiff brought suit against defendant Worthington as surety without joining the principal, Van Pelt, whom he alleged to be -insolvent. The defendant alleged that, although the note was signed December 11, 1010, , it was not delivered until March 3, 1911; that there was an agreement between ■the principal and the surety that the prin-cipal should give to the plaintiff a chattel mortgage on certain horses so as to protect ■-the surety. On the 3d day of March, 1911, said mortgage was executed. The findings •of fact of the trial court, so far as material, are to the effect that while said note bears date the 11th day of December, 1910, it was not, in fact, delivered until March 3, 1911; -that the surety signed shortly after December 11, 1910, with the understanding and on condition that the principal would give some .security in addition to the surety signature; ■that plaintiff had no notice of this agreement or -condition on which defendant signed the note; that the principal on March 3, 1911, before delivering the note to the plaintiff, executed a mortgage on certain horses to secure said note; that said mortgage was 'delivered to plaintiff March 3,1911, and duly filed for record on said date; that on March 27, 1911, the principal, without the consent