Opinion
1 Div. 117.
November 28, 1940.
Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.
J. D. Ratcliffe, of Monroeville, for appellant.
A guarantor is not released from the debt of a principal debtor where the guarantor's signature is obtained by fraud of the principal debtor, unless the guarantee, or obligee, participates in or has knowledge of the fraud. Cresap v. Furst Thomas, 141 Miss. 30, 105 So. 848; Watkins Co. v. Hargett, 209 Ala. 165, 95 So. 811; Bromberg v. Fidelity Co., 139 Ala. 338, 36 So. 622; 28 C.J. § 66, p. 927; Furst Thomas v. Sandlin, 208 Ala. 490, 94 So. 740.
C. L. Hybart, of Monroeville, for appellees.
Brief did not reach the Reporter.
Appellant brought this suit against the appellees as guarantors for the performance of a certain written contract entered into between appellant and one William W. McNeil.
As a defense to the suit defendants interposed plea "A", which appears in the report of the case. This plea was rested upon the fraudulent misrepresentations on the part of the principal obligor. But the plea fails to aver that plaintiff, the guarantee, participated in or had any knowledge of any such alleged fraudulent representations.
Apt grounds of demurrer take the point, and under the decisions of this court (J. R. Watkins Medicine Co. v. Hargett, 209 Ala. 165, 95 So. 811; Furst Thomas v. Sandlin, 208 Ala. 490, 94 So. 740; J. R. Watkins Co. v. Daniel, 228 Ala. 399, 153 So. 771) in harmony with the current of authority elsewhere (71 A.L.R. 1278 et seq.; 28 C. J. 927) the demurrer was due to be sustained.
The action of the court in overruling the demurrer to plea "A" superinduced the nonsuit and was error to reverse. In view of that conclusion a consideration of the ruling on plaintiff's replication becomes unnecessary.
For the error indicated let the judgment stand reversed.
Reversed and remanded.
BOULDIN, FOSTER, and LIVINGSTON, JJ., concur.