51 Colo. 564 | Colo. | 1911
delivered the opinion of the court:
W. H. McClure and1 James J. Cone executed eight promissory notes to the Deseret Savings Bank, of Salt Lake City, aggregating thirty-eight thousand dollars. Seven of them were for five thousand dollars each, and one for three thousand dollars. These notes were se-
In advance of the hearing the executrix moved the court to require claimants to elect between their individual claims and joint claim, and after such election, to strike the other claim or claims, on the ground that all the claims arose out of the sanie notes and transactions, and that the individual claims and joint claim were inconsistent. The motion was held for
(1) That as to each individual claim, there is another action pending, to-wit, the joint claim.
(2) That as to the joint claim, other actions are pending, to-wit, the individual claims.
(3) That as to the joint claim, there is a misjoinder of claimants.
(4) That as to all the claims, there is an improper joinder of causes of action.
(5) As to each claim, want of facts.
This demurrer was overruled. When the testimony was completed,' the executrix renewed' her motions, to which reference has been made. They were then overruled.
The first point urged upon our attention by counsel for appellant, is, that the court erred in overruling the motions and demurrer. In support of this contention it is said that the claims are inconsistent; that claimants could not have both an individual and joint claim growing out of the same transaction, and that they were bound to know, in advance, which statement regarding their claims was true. Tf the Civil Code governs proceedings of the character under consideration, (upon which we express no opinion), a serious question would be presented, were it not for the fact that the record affirmatively discloses that the executrix was not prejudiced by overruling the
“The court shall, in every stage of an action, disregard any error or defect in the pleadings or proceedings which shall not affect the substantial rights of the parties, and no judgment shall be reversed or affected by reason of such error or defect * * * ”
The material and important question is, whether the testimony established a joint claim upon the notes. It is urged that it does not, because it appears the money paid by each claimant was paid out of his individual funds, and not out of any joint funds belonging to them; and hence, it is contended, the claim of each was individual. In other words, it is con
Because of this distinction, the discharge of the contract of guaranty by the guarantor does not extinguish or satisfy the obligation to which the contract of guaranty relates; consequently, it is universally held that upon payment of a note by a guarantor, when only secondarily liable, he becomes entitled to the possession of such note, and may maintain an action upon it against the maker. — 2 Daniel on Negotiable Instruments, § 1758; Tebery v. Swenson, 32 Kan. 224; Anthony Investment Co. v. Law, 62 Kan. 193; Jennings v. Pratt, 19 Utah 129; Jacobs v. Pierce, 132 Ill. App. 547.
Such, in effect, as applied to the facts of this case, is the provision of our Negotiable Instruments Act, § 4584 Rev. Stats. 1908. We therefore conclude
The testimony disclosed that the sum, or sums which each paid was out of his individual funds, but after these payments the notes to which their contract of guaranty related were assigned and delivered to them jointly. Whether the funds by reason of which this arrangement was affected were joint or individual is immaterial, if, by an agreement between themselves with the holder' of the notes; they became the joint owners thereof. In such circumstances the . amount to which each of the joint owners would be entitled of the sum recovered from -their principal would, doubtless, be in ■proportion to what each had paid, but-that is not a matter in which the maker is ’ concerned; so that from the testimony it not only appears that claimants were the joint owners of the notes in question by a special arrangement between themselves and the holder, but that they also became such owners of the notes which they jointly guaranteed by operation , of law. Perhaps the latter would not, of itself, entitle them to maintain a joint claim on all the notes, but the arrangement between the holder and themselves, to which we have referred, did.
The executrix objected to the introduction of any testimony to support the joint claim upon the ground that it had not been properly exhibited. This objection was based upon the assumption that the claim was founded upon a judgment, and that for this reason the exemplification of the judgment should have been filed. This assumption is not warranted. The claim was based upon the notes which claimants had guaranteed and paid. • These notes were attached to, and filed with, the claim.
W. H. McClure was called as a witness on behalf of claimants., -.Counsel for the executrix objected to his being permitted to testify, upon the ground that he was disqualified by virtue of. the provisions of § 4816, 2 M. A. S., which provides, in substance, that a person interested in the result of an action to which an executrix is a party, shall not be permitted to testify as a witness for the adverse party to such action, except in certain cases, and that the witness did not come within- the- exceptions. It is unnecessary to determine whether or not the witness was disqualified by virtue of the provisions of this section. His testimony was of a character that it could not possibly have b'eén prejudicial to the interests of the executrix or the estate which she represents.
The judgment rendered in'Utah was satisfied, and for this reason it' is urged that as such satisfaction released McClure, the Cone estate could only b'e held for one-half of the amount of the joint claim of claimants.'' The satisfaction was the result of the guarantors, who are claimants, complying with their contract. Had McCluré paid the judgment, claimants would not have been required to pay anything, but-: as he ■ did not, they were compelled1 to- pay the sum represented by their joint claim, which imposed upon their principals a joint and several obligation to reimburse them for the money expended to discharge their contract of guaranty. This is the obligation which they sought .to enforce by their joint claim. In the circumstances above noted, the-fact that the júdg-.
To further secure the notes executed by Cone and McClure, James Sharp and wife, and John Sharp and wife, and' one Emily C. Smith mortgaged other lands. It appears that these securities were applied upon the notes in question. For this reason it is urged that’ to the extent such securities were credited upon the notes by accepting or subjecting property belonging to others, claimants are not entitled to recover. In other words, it is urged that we must assume that one-half of the property mortgaged by James Sharp and wife belonged to the latter; that a similar condition existed with respect to the property mortgaged by John Sharp and wife; and that Emily C. Smith was the owner of the property which she mortgaged, and that therefore property other than that of the claimants was taken or accepted upon the notes, and to this extent they have no claim against the Cone estate; but that whatever claim exists on this account belongs to the parties not guarantors whose property was applied! upon the notes. We do not think there is any merit in this contention. These additional securities were unquestionably given to secure the contract of guaranty. The original notes were endorsed and delivered to the claimants by the payee, and we must assume that they paid the whole consideration to the bank for the use of those entitled thereto necessary to obtain such assignment, and are the ovmers thereof, there, being nothing from which to infer the contrary; otherwise, the notes would not have been endorsed and delivered to them. — Gumaer v. Sowers, 31 Colo. 164.
It is claimed that in no event can claimants recover upon the five thousand dollar note designated a8 Exhibit No. 6. This claim is based upon the ground
It is also urged on behalf of the appellant that much irrelevant and immaterial testimony was introduced by claimants, and that the court failed to consider all the testimony introduced when determining the validity of the joint claim. We do not deem it necessary to go into consideration of these matters
Other errors are assigned which it is not necessary to specifically notice, because the disposition of other questions to which we have given attention demonstrates that they are without merit.
The judgment of the county court is affirmed.
Judgment Affirmed.