20 Mo. App. 524 | Mo. Ct. App. | 1886
The allegations of the petition, in respect of the agreement by which Clarkson was released on the assumption of payment of the note or debt by defendant, constitute a novation. 1 Pars. Cont. (7 Ed.) 217, et seq. ; Black v. Paul, 10 Mo. 103. The answer failed to deny this averment. On the contrary, it proceeded on the recognition of its truth by pleading a like arrangement respecting the sale to Wishard. By the novation, Clarkson'was discharged as the debtor of plaintiffs, and the debt, so far as he was concerned, was effectually extinguished; and the defendant, thenceforth, became the debtor of the plaintiffs. Butterfield v. Hartshorn, 7 N. H. 345; Caswell v. Fellows, 110 Mass. 52; Morris v. Harvey, 75 Va. 726.
I. The novation pleaded, whereby it is claimed that Wishard was substituted by consent of all the parties to the place of the defendant, presented a question of fact for the jury, under proper directions from the court. With their finding on the facts, we cannot interfere, unless they were misdirected by the court. Among the instructions given on behalf of the plaintiffs, is the following:
“ 2. The mere fact that plaintiffs, or W. H. Brown-lee, trustee for Mrs. Brown, may have ' received one year’s interest from Wishard and may have extended the time of payment one year did not and does not discharge the defendant from liability on the note sued on.”
I am of opinion that this instruction was, under the circumstances of this case, calculated to mislead the jury, and to persuade them that they were authorized to disregard one very important element of proof in determining whether there was such novation.
The existence of such agreement, like any other fact of kindred import, may not be susceptible of direct proof, but it is to be determined by the jury from all the facts and circumstances in evidence. Parsons on Cont. (vol. 1, p. 218, note 1), says : “ Such a release may be inferred from the acceptance of the interest, the receiving of new notes, or the proving a claim in bankruptcy,” etc., citing Bilborough v. Holmes, 5 Ch. D. 255.
There were many other facts and circumstances connected with this whole transaction tending most persuasively to show that the plaintiffs recognized the arrangement made between defendant and Wishard for the former’s release. And these, coupled with the fact that plaintiffs, after this, dealt with Wishard, collected interest from him, and agreed with him for an extension of time, etc., presented a strong case for the discharge of the defendant on the ground of novation.
No doubt it was in the mind of the framer of this instruction to meet the other defence set up in the answer as to whether the extension of time, based alone upon the payment of accrued interest, constituted a sufficient consideration to operate as a release of the surety; •but there is nothing on the face of the instruction so limiting its operation and design. The jury could as well apply it to the one issue as to the other. It was, therefore, misleading and mischievous; and for this error the judgment must be reversed.
On the trial, the court permitted the husband of plaintiff, Minnie Brown, to testify as a witness. He was an incompetent witness. White et al. v. Chaney, ante, p —. There was no evidence to show that he was the .agent of his wife. His agency could not even be established by his testimony in the first instance. Williams v. Williams, 67 Mo. 661.
On an examination of his testimony,’ however, I am unable to discover any fact spoken to by him, either contradicting the evidence of the defendant, or anything which would destroy or affect' any fact established by the defence. To maintain the averment respecting the novation at issue, it devolved upon the defendant to show, directly or indirectly, the assent of Mrs. Brown, the real party in interest. No act, no declaration of the husband, not assented to by her, could binder affect her touching this alleged agreement. The very ground work of the objection to his competency is that he was not the agent of his wife in this matter. The facts testified to by him were rather helpful to the defendant, and his counsel avails himself of them on this appeal. We will not reverse for harmless errors of this character.
II. The next matter of defence arises on the extension of time for the payment of the note made between
Defendant’s contention is, that by the arrangement between him and Wishard, whereby the latter assumed the payment of the mortgage debt, the relation of principal and surety was established between them, and that defendant was the surety; and, therefore, when plaintiffs, without the knowledge or consent of defendant, extended the time of payment by agreement with the principal, it operated to discharge him from all personal liability on the note.
There is authority of high character for the proposition of law contained in this position. 1 Jones on Mort., sect. 742, and citations. There are authorities, however, of high character, holding the opposite view; -fchat, while the relation of principal and surety exists as between the mortgageor and his grantee, the mortgagee is not affected thereby, and there can be no discharge of the morgageor’s liability on the ground of indulgence by the mortgagee to the grantee of the mortgageor. Corbett v. Waterman, 11 Ia. 86; Conn. Mut. Ins. Co. v. Mayer, 8 Mo. App. 18.
While I am inclined to the opinion that there are some facts accompanying and characterizing this case, which tend to show that the plaintiffs treated with the grantee as if recognizing him as the principal debtor, and that, too, under circumstances calculated to lull the defendant into inattention to the debt and security, and that, as applied to this case, the mortgageor should be held to answer for any act in dealing with the grantee calculated to lessen his security and imperil his protection; yet, this would not relieve the defendant, except on the ground as evidence tending to establish the novation. It appears that the extension of time of payment for one year was made upon the payment of interest then due on the note. There was3 therefore, no valuable
The learned counsel for appellant, however, attempts to draw a distinction, favorable to his client, between an executed and executory contract; that the extension in this case being actually accomplished, the law presumes the act was for a valuable consideration. Even if we-were to concede such presumption, the reasonable inference from the facts of record is, that the only consideration for the extension was the payment of accrued interest ; for the endorsement on the note is simply: “interest paid on this note to January 1, 1878, and time extended.for one year.”
If the surety was discharged by reason of the stipulation for delay, it was at the moment it was made, and he did not have to await the running of the year before he could avail himself of the fact.
In paying the interest when and as he did, Wishard only paid what he owed; and the stipulation for another year’s time, depending alone on this payment, was with out consideration to support it; and the plaintiff, or defendant, might have sued Wishard the next day. The giving of time, which will discharge the surety is “not a mere promise of indulgence; it is the act of the creditor depriving himself of the power of suing, by something obligatory which prevents the surety from coming into a court of equity for relief, because the principal having tied his own hands, the surety cannot release them.” Nichols v. Douglas et al., 8 Mo. 49.
III. The only remaining defence made by the answer is that contained in the portion stricken out by the court. There can be no question of the rule of equity that the relation of vnrety and principal existed between defendant and Wishard, and that on payment of the;
The land being the primary fund for the payment of the debt, the mortgagee did right in first proceeding against it. This, his contract expressed in the mortgage, •authorized him to do. There is no pretense that the mortgagee in the foreclosure sale did not pursue the letter of the deed. Therefore, on principle, before this sale can be avoided, and the mortgage resuscitated, there should appear some element of fraud, deceit, or concealment connected with the conduct of the mortgagee in foreclosing as and when he did, contrary to good conscience as recognized by the courts of equity.
The first imputation upon the conduct of the mortgagee conveyed in the portion of the answer stricken out, is that during the time in question the defendant waa a non-resident of the county in which the proceedings were conducted, and that Wishard was a non-resident of the state ; and that no notice was given them, or either of them, of the sale. The contract did not require the giving of any other notice than the simple advertisement of sale. The answer does not charge any specific act of concealment or device on plaintiffs’ part, to withhold notice of the sale from defendant, or any other person.
It is next charged that the land was greatly sacrificed by the sale, being conducted. in the defendant’s absence. But there is no averment of any act or strategem of the
On account of the error in giving the second instruction for the plaintiffs the judgment is reversed, and the cause remanded.