248 Pa. 247 | Pa. | 1915
Opinion by
This is an action of assumpsit to recover the amount
It was conceded on the trial that John A. Brown was the principal, and Philip Brown, the surety, on the notes. The defense was that Mrs. Marmaduke paid the •.notes individually; out of her own money, and that the debt was thereby extinguished. The learned court held that there was no testimony which would warrant the conclusion that Mrs. Marmaduke intended the notes were to be extinguished at the time she paid the money and that, therefore, there was no extinguishment of the indebtedness. This was the controlling question in the cas.e, and it should have been submitted to the jury. There was evidence which would have warranted the jury in finding in favor of the contention of either party to thé suit. The defendant called ho witnesses. The two- parties who were present and received the money
Mrs. Marmaduke was, so far as the evidence discloses, a stranger to the notes, and if she voluntarily paid and extinguished the indebtedness she could not recover against either of the makers. If, on the other hand, the transaction between her and the holders of the notes was a purchase and not an extinguishment of the debt, she could enforce payment by the makers of the notes. In order that the debt may survive it must appear that the holders of the notes, as well as Mrs. Marmaduke, understood or agreed that the payments should be a purchase and not an extinguishment of the debt. A creditor is not compelled to accept payment of his obligation and transfer it to another. He has the right to demand payment in extinguishment of his indebtedness, but he may sell and transfer the obligation to another, investing the latter with all his rights and remedies
The extension of time for payment of the notes, claimed by the defendant to have been given the principal, will not avail the defendant as a defense in this action. Philip Brown’s executors were not compelled to resist payment of the obligations on the ground that the holders of the notes had extended time for payment to the principal without consent of the surety. Such a defense is for the benefit of the surety, and it is optional with him whether he avails himself of it or not. The principal obligor cannot demand that his surety interpose such a defense at the risk of defeating subrogation against the principal.
The contention of the defendant that the right to recover in this action was settled by the verdicts and judgments in the two cases brought by Mrs. Marmaduke against the plaintiffs is untenable. John A. Brown or his executrix was not a party to those suits, and the latter may now set up any defense which would have availed him or her in a suit by the payees of the note or their transferee.
The first assignment of error is sustained, the judgment is reversed, and a venire facias de novo is awarded.