Benedict v. Olson

37 Minn. 431 | Minn. | 1887

Vandeebukgh, J.

1. The defendant Olson claims to have signed the notes in suit as surety, though that relation as between him and the other signers is not disclosed on the face of the paper. Upon the trial he offered to show that, while Fladigal, the alleged principal on one of the notes, was solvent, he requested the plaintiff to commence suit, and collect the same of him, which plaintiff neglected to do. It did not, however, appear from the evidence, nor did the defendant, offer to show, that Fladigal had since become insolvent, or had, in fact, left the jurisdiction, or that he had himself offered to indemnify plaintiff for his costs, or that the latter had waived such indemnity. The offer would have been properly rejected, even if plaintiff had. known that defendant was surety for the other makers. Huey v. Pinney, 5 Minn. 246, (310;) Gen. St. 1878, c. 66, § 130. Mere passive-delay on the part of the plaintiff in prosecuting his remedies did not-operate to release the surety. He could have paid the debt, and become subrogated to plaintiff’s rights, and have proceeded against his, principal, or have brought suit under Gen. St. 1878, c. 66, § 130.

. 2. As to the second note, upon its face all the signers appear to be-joint makers. There is nothing in the record tending to show that the plaintiff'had any knowledge or notice that the defendant Olson was merely a surety. The fact that, after the note became due, the-latter requested him to collect it of Thoe, who, as he alleges, was the-principal debtor, and helped get security of him, is insufficient to. raise a presumption of the knowledge by plaintiff of the obligations, of the debtors between themselves, as this may have been done for other and different reasons. As to him, they all contracted as joint makers, and, until he was informed of the relations of the makers to> each other, he was not bound to take notice of the defendant Olson’s-equitable rights as surety. Agnew v. Merritt, 10 Minn. 242, (308,). and cases. It is not material, therefore, to consider whether the trial, court erred in rej ecting the evidence of an agreement by plaintiff to> extend the time of the payment of the note, in consideration of the security given by Thoe.

Order affirmed.