7 dissenting. I dissent. It must be remembered that this appeal involves only the right of sureties, who, as is well settled, are entitled to stand upon the terms of this contract as expressed in the paper evidencing such contract. Here, by the express terms of the notes, which constitute the only evidence of the contract, which the plaintiff is seeking to enforce, the appellants bound themselves to pay to “W. E. Beattie, cashier, or order, negotiable and payable at the National Bank of Greenville, S. C.,” a specified sum of money. This obligation, by its terms, rendered appellants liable to pay to said Beattie, or to any person to whom he might legally transfer such obligation, the sum of money specified therein, and did not create any liability to pay the same to any other person. When the plaintiff brought this action to enforce performance of the contract of appellants, *77it must not only show that appellants executed said notes (as to which there is no dispute), but it must also show that the same have been duly transferred to the plaintiff by the payee named in said notes, or some subsequent lawful transferee thereof; and as to this, it seems to me that the plaintiff has failed to make out its case. The undisputed testimony, introduced by the plaintiff itself, shows that the plaintiff never acquired a legal title to the notes. Beattie never acquired a legal title to these notes, as he expressly refused to accept them; and if he acquired no legal title, I do not see how he could transfer any title to the plaintiff. These facts were expressly made known to the plaintiff through its treasurer, Bostick, who was the agent of plaintiff in the transaction, and notice to the agent was notice to the principal; the plaintiff cannot, therefore, claim to be an innocent holder for value without notice. If plaintiff had acquired these notes in the regular course of business without notice, then the result would, perhaps, be different. .Of course, if Ormand & Goforth received the money specified in the note from the plaintiff, as the testimony seems to show, then they would be liable upon that ground; but not so as to appellants, who are mere sureties, and can only be held liable on their contract as they made it. They could not be held liable to Beattie, because he never accepted the notes, and never made any contract with them, and they cannot be held liable to any person to whom he transferred the notes without authority, who had notice of such want of authority.
Mr. Justice Jones concurs in the dissenting opinion of the Chief Justice.