Borum v. Reed

73 Mo. 461 | Mo. | 1881

Norton, J".

This is a suit by attachment, commenced in the Jasper county circuit court, on a note, of which the following is a copy :

“ $1,153 10-100. January the 14th, 1878.

One day

Six months after date we, or either of us, promise to pay S. P. Borum, or order, the sum of one thousand one hundred and fifty-three dollars and ten cents, with interest at eight per cent from date, value received. This note for purpose of paying John Bonecuta the sum of $87; paying J. E. Amos $953 10-100 ; paying Dickson $8 ; and all other debts which S. P. Borum is security for.

A. Eeed,

I. H. Eeed.”

Defendants appeared and filed separate answers, in which they alleged that the said instrument, after its execution, had been materially altered by the erasure of the words “ six months,” and the insertion of the words “ one day;” that said alteration was made without their knowledge or consent, and had never been sanctioned by them, or either of them. The answer further set up that said obligation was given for the sole purpose of indemnifying plaintiff against loss by reason of his suretyship for defendant Adam Eeed on a note to one Amos and other persons named; that said debts .of Adam Eeed to Amos and other persons remained unpaid, and that plaintiff had never paid any part of said debts, and that until such payment by him the obligation in suit was without consideration.

On the trial plaintiff had judgment, from which the defendants have appealed, and the material grounds of error assigned in the motions for new trial and in arrest are, that the judgment rendered was unauthorized, and that the court erred in refusing to give certain declarations of law asked by defendants, to the substantial effect that if the instrument sued on was intended merely to indemnify plaintiff against loss by reason of his having to pay* as security for Adam Eeed, the debts mentioned' therein, plaintiff was not entitled to recover, unless the evidence showed that he had sustained loss by making such payments.

1. a note con-contract°0FEiNt demnity.

That the instrument sued on was intended as a mere indemnity we think not only shown by the evidence of defendants as to what occurred when it was executed, which was received without objection, but also by the purpose expressed on the face of the writing. There can be no question that if the debts for which plaintiff was bound as the surety of Reed had been paid by Reed, no recovery could be had on the obligation sued upon, and it seems to be equally clear that before plaintiff could ask to be indemnified, he should be required to show that he had sustained loss by the payment of the notes against which he was to be indemnified. The fourth instruction asked by defendants substantially •embraced the above principle, and should have been given.

2. form of jüdbMENT IN ATTACHment.

The judgment rendered in the case directing and ordering, as it does, the sale of the attached property, is erroneous, according to the authoritv of the . ° J case of Kritzer v. Smith, 21 Mo. 296, where it was held that, in an attachment suit, where the parties are summoned or appear to the action, while the judgmeut ■should be a general one, it would be error to condemn the attached property to be sold “as under such a judgment the attached property need not be necessarily sold. If there is other property sufficient to satisfy the execution the defendant may surrender it, and have the attached property if he wills it.” This case was followed in the case of Jones v. Hart, 60 Mo. 351.

For the above errors the judgment will be reversed and cause remanded,

in which all concur.