10 Or. 158 | Or. | 1882
By the Court,
The appellants, as assignees of lea F. Bice, brought this action against the respondents to recover the amount of a
“Oakland, Oregon, September 25, 1878.
“Two years after date, without grace, we, or either of us, promise to pay to lea B. Bice, the sum of six hundred dollars, in United States gold coin, value received.
S. Y. B. Bathburn,
Thomas Hanna,
C. B. Hanna.”
The respondents filed a joint answer denying the assignment, and alleging, as a separate defense, the lease of a farm and some live stock by Bice to Bathburn and Thomas Hanna, at a rent of $600, upon the condition that Bice should have and hold possession of all the wool and farm products until the rent should be fully paid. That the note sued on was given as additional security, and that C. B. Hanna signed the same as surety merely, without consideration to himself, and in view of and relying upon the provisions in said lease concerning the security therein stipulated for, and not otherwise. That afterwards on September 3, 1880, Bice having in his possession, at said farm, under the provisions of the lease, 1600 or more bushels of wheat, Avliich had been produced on the farm during the continuance of the lease, joined Avitli Bathburn and Thomas Hanna in selling and delivering all said wheat to the appellants at the agreed price of 62-£ "cents per bushel, in consideration of the payment of said note by them, and the payment of the balance of the agreed price of said Avlieat to Bathburn and Thomas Hanna, and that Bice took and received said AArheat in full payment of the note and rent, and sold and delivered the same to appellants as aforesaid. That appellants after-wards took said note with full knowledge and understanding of all the foregoing facts.
By the terms of the written agreement executed by Rathburn and Thomas Hanna at the time of the sale, no part of the proceeds was to be applied to the payment of the note in dispute. The court below rendered judgment for all the respondents for their costs. Appellants, being dissatisfied with tliis decree, appealed, assigning as error the overruling of their demurrer and the rendition of the judgment against them on the facts found by the court. The decision on the demurrer was correct beyond all question. The facts stated in the separate defense in the answer, if true, exonerated all the respondents from liability on the note in the appellants’
Such property was more than sufficient to satisfy the note, and his recourse to it to obtain payment of the note was lost through his own act alone. The surety thereby became exonerated from any further liability upon the note in his hands, and the appellants as his assignees, with notice, occupied no better position. It is undoubtedly true that the surety should have answered separately if he intended to avail himself of matters which would amount to a defense for himself alone. But no objection upon this ground appears to have been made in the court below when it could and doubtless would have been obviated by an amendment, and it cannot be successfully urged here.
Appellants do not claim to have been mislead as to the