The opinion of the court was delivered by

This action counts upon two promissory notes payable to the plaintiff, or bearer, signed by W. K. & G. A. Richardson, and indorsed by the defendant. By the pleadings the issue is joined whether the defendant indorsed the notes as principal, or as surety for the Richardsons. The notes, on their faces, import that the defendant was a joint promisor with the Richard-sons, and jointly liable with them to the plaintiff as principal. But the real relation of the parties to a written instrument, whether as principals or sureties, may always be shown by parol evidence.

The exceptions state that “ it appeared in evidence that, on the day of the date of the notes the plaintiff sold the Richardsons two yoke of oxen for which said notes were given ” ; that the sale was made at the plaintiff’s premises in Sharon, the cattle driven to West Hartford, weighed, and these notes executed on the part of the Richardsons, and delivered to the plaintiff; and that the Richardsons put the cattle into their drove. The plaintiff’s testimony tended to prove that it was expressly understood, at the time of the sale and the execution of the notes, between the plaintiff and the Richardsons, that they should procure the defendant to sign said notes before he would accept them in payment for the oxen; that accordingly after the oxen were weighed they *561went to Quechee, where they met the defendant, and after some parley and hesitation, all the parties being present, the defendant wrote his name upon the back of said notes, and the Richardsons drove away the oxen to Manchester, N. H.

The evidence of the plaintiff further tended to show that plaintiff told the defendant that he “ should look to him for the pay, when the notes became due ”, and that, in fact, he did rely mainly upon the defendant’s name.

Conceding all the facts established which the plaintiff’s testimony tended to prove, what was the relation between the defendant and the Richardsons ? The oxen were sold to the Richard-sons, weight and the price computed; the note of the Richardsons executed and delivered to the plaintiff for the price, and the oxen delivered to the Richardsons, subject only to the condition that they should procure the defendant’s name to the paper. The oxen were sold to the Richardsons; the entire title vested in them. The debt or duty to pay the price of the purchase was upon them. The defendant had no knowledge of the purchase, no interest in it. He lent his name to the Richardsons to strengthen their paper. He did, indeed, bind himself jointly and severally with the Richardsons to pay their debt; and the duty he assumed to the plaintiff was absolute, and without condition. The plaintiff could have collected the whole debt of the defendant when it became due, and in doing that, he was but exercising a right and enforcing a duty under the contract. But the plaintiff knew from the beginning that this was the proper debt of the Richardsons; that the notes were given for the purchase-money of property he sold them; that Jf the defendant was compelled to pay the notes, he had full legal recourse to the Richardsons, to reimburse himself for the whole money paid. The plaintiff, then, knew that the actual relation of the defendant to the Richardsons was that of surety for them. And while the plaintiff had the full right to enforce these notes against this defendant alone at all times, after due, and to any extent, until they were paid, he could not abridge or endanger his right of recourse to his principal, by engrafting upon the notes a new contract, extending the time of payment; and if he voluntarily discharge the debtor, whose primary and *562ultimate duty (and he knows it) it was to pay the notes, he discharges the debt. If all the facts which the plaintiff’s evidence tended to prove, were true, the defendant was surety for the Richardsons, and that known to the plaintiff when the defendant signed the papers. The defendant’s testimony did not change the plaintiff’s case in any essential particular; and the material facts being not in issue, it became the duty of the court,- as a matter of law, to apply the law to the conceded facts. And when it was conceded that the notes were given for the price of the oxen sold the Richardsons by the plaintiff, in which the defendant had no interest, and that he lent his name to the paper for the accommodation of the Richardsons, the defendant by implication of law, was the surety for the Richardsons. And in refusing the defendant’s request, and submitting the case to the jury, there was error.

Judgment reversed, and cause remanded.