I agree with the majority that the court did not err in overruling the general demurrer to the petition. I think, however, that the reason for such a ruling forecloses the other questions involved against the bank. The letter written by the defendant in connection with the signing of the two notes is plain and unambiguous. The question is, what is meant by the expression, "whenever a payment is made on the note which I have endorsed." "Payment is not a word of technical legal meaning. It is well understood by the layman and, indeed, was brought into law proceedings from commercial life and not from the law treatises, It has been defined as the discharge of an obligation by the delivery and acceptance of money, or of something equivalent to money, which is regarded as such at the time by the person to whom the payment is due. Payment may also be defined as the performance of the consideration clause of a contract, or the satisfaction of a liability imposed by law. It implies a debt from him who pays to him who is to receive, andthat when the payment is complete the debt will be discharged." 40 Am. Jur. 715, § 2. "A negotiable instrument is discharged: (1) By payment in due course by or on behalf of the principal debtor." Code, § 14-901. "Where the instrument is paid by a party secondarily liable thereon, it is not discharged." § 14-903. "A payment made by an indorser in partial discharge of his liability as such is held by high authority not to diminish the liability of the original maker to any extent, and the holder is still entitled to recover judgment against the maker for the full amount of the paper, although to the extent of the payment made by the indorser the recovery must be held in trust for him. Of course, the maker is not discharged pro tanto by the indorser's payment if the holder agrees with the indorser to keep the note alive for the benefit of the latter." 8 Am. Jur. 480, § 833. See also 8 Am. Jur. 201, § 450. Under the foregoing authorities, the meaning of the letter is that, if the principal debtor made a payment on the note indorsed by the defendant, which would have the effect of discharging the note as to the principal debtor to the extent of such payment, then the defendant would see that a like *Page 854 payment was made on the note not indorsed. The effect of the agreement is that the defendant agrees to indorse both notes, but at the same time limits his liability to the payment of only onenote. For illustration, if the principal debtor had made full payment of the indorsed note, and the defendant had not seen that like payments were made on the unindorsed note, then the defendant would have been liable for the amount of the unindorsed note. If nothing had been paid on either note, the defendant's liability would have been the amount of the indorsed note and not the unindorsed note. If the principal debtor had paid half of the indorsed note and failed to see that like payments were made on the unindorsed note, the liability of the defendant would be one-half of the indorsed note and one-half of the unindorsed note. His liability might have been less, but it could not have been more than the amount of indebtedness on one note. The petition alleges that from time to time "payments" were made until the indorsed note was paid in full. Giving to the word payment, as used in the petition, the same meaning which we have given it in the letter, the allegation in the petition means that the various payments on the indorsed note were made by the principal debtor, and that such payments discharged the note as to the maker and the indorser.
The evidence shows that most of the indorsed note was paid by the defendant and not by the maker of the note. The defendant, therefore, has not breached his obligation. The majority opinion is largely taken up with a discussion of whether the obligation assumed by the defendant was that of guarantor or surety. It is clear that his obligation was that of surety, but the answer to that question does not solve the problem. The vital question is, what is the effect of the agreement? The majority holds that the obligation of the defendant is virtually that of an indorser of both notes. To me such a result is absolutely untenable. To attribute to the parties such an intention is to make them ridiculous. The defendant positively refused to endorse both notes because he said he could not afford to have two endorsements show on his financial statement. Despite this, the majority would force him to endorse both notes. This is merely by way of argument, not that it has anything to do with the interpretation of the unambiguous terms of the agreement. It merely gives support to what the legal meaning of the contract is. I do not think that the majority's interpretation *Page 855 of the contract is reasonable or sound, and it is not supported by even one citation of authority. We have held that the contract was unambiguous and the only thing we can do is to declare its legal meaning. I have no recourse but to dissent from the principal ruling. I also dissent from the ruling as to paragraph 11 of the answer. Gardner, J., concurs in the dissent.