Bonney v. Bonney

29 Iowa 448 | Iowa | 1870

Weight, J.

1. demtjkrer : practice. The appellant very correctly insists, that as the demurrer was to the whole answer, some parts and divisions of which are undeniably good, as against the grounds of demurrer now before us it should have been overruled. This is clear enough upon principle, and has been more than once so ruled by this court. See Singer v. Cavers, 26 Iowa, 178; Zapple v. Rush, 20 id. 99; Edmunds v. Cochrane, 12 id. 488; Jarvis v. Worick, 10 id. 29; Coon v. Jones, id. 131.

2. release : joint obligors. But other questions have been argued, and are important to the speedy settlement of this controversy ; we therefore proceed to their examination. The general ruje release by the obligee of one of two or. more persons, who are jointly or jointly and severally bound to him, is a discharge of all. This release (technical as it is sometimes and perhaps generally called) will not, however, have this effect if, looking at the whole instrument, the relations of and circumstances of the parties, they cannot reasonably be supposed to have so intended. It will rather be construed as a mere. agreement not to charge the person or party to whom the release is given. Seymour v. Butler, 8 Iowa, 304, and’ cases there cited ; and see Turner v. Hitchcock, 20 id. 310. In this case the answer avers that plaintiff did compromise and settle the entire indebtedness, by receiving the money and mortgages therein set out ; that they were given and received in full settlement; that the other'sureties, as well as the principal, were released from their obligation upon the bond, and that defendant (appellant) was thereby discharged. And, as we find nothing in the instruments of release, the order of the county courts, the reports thereto, the relations of the parties, or the circumstances, in conflict with this averment, or with the facts stated upon which the averments are based (but, on the contrary, made to support them), they must be accepted as true ; and so accepted they present a complete bar to a recovery by plaintiff. This conclusion is reached, both upon the ground that the facts stated show a release of the other sureties, and .because they show a full settlement of the principal’s indebtedness. If either of these averments is true, as already stated plaintiff cannot recover.

3. surety: extension of payment. As to taking the mortgage from the principal, and the time given (five years), we remark, that, if it was accepted simply as a collateral security, and plaintiff’s , , ' 1 , , right ot action upon the bond was not thereby superseded, it would not operate to discharge appellant. If this was the agreement, however, either in fact or in law, he would be discharged, without reference to its effect otherwise upon his rights. A binding agreement with the principal, by which the time of payment is extended without the consent of the surety, releases the latter, and courts will not stop to inquire whether he is prejudiced thereby. Coriell v. Allen, 13 Iowa, 289; Lauman v. Nichols, 15 id. 161; Kelley v. Gillapsie, 12 id. 55; Chambers v. Cochran, 18 id. 159, and the cases there cited; also Davis v. Graham, post.

The release of the property included m the mortgage, unless there be sufficient left for appellant’s security, wouldyiro tanto operate to his injury, and to that extent he would be released. The security taken for the principal was for his benefit and protection, as well as that of plaintiff. And, if the property thus released was sufficient to discharge appellant’s liability, plaintiff’s right of action against him would be gone. The simple release, however, without more would not discharge him, for if there shall still be enough left for his protection, he is entitled to have it subjected to the payment of this debt, and if sufficient he is not, of course, prejudiced by the partial discharge, and cannot complain. Chambers v. Cochran, supra, and cases there cited.

In our opinion the answer, in the parts or divisions here considered, presents good grounds or defence, and the demurrer should have been overruled.

Keversed.