57 Miss. 350 | Miss. | 1879
delivered the opinion of the court.
W. P. Gibson, A. O. Cox, and J. B. Deason, on Nov. 13, 1876, executed their joint and several bond to the defendant in error in the penalty of one thousand dollars, with a condition as follows: “ That if the above bounden W. P. Gibson, his heirs, &c., shall well and truly pay, or cause to be paid, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred on the part of the said W. P. Gibson to the said Weed Sewing Machine Company, whether such indebtedness or liability shall exist in the form of book accounts, notes, renewals or extensions of notes or accounts, acceptances, indorsements, guaranties, assignments, or otherwise (hereby waiving presentment for payment, notice of non-payment, protest and notice of protest, and diligence upon all notes now or hereafter executed, endorsed, transferred, guaranteed, or assigned by the said W. P. Gibson to the said Weed Sewing Machine Company), then this obligation to be void; but otherwise to remain
The defendants Cox and Deason pleaded separately, — 1. 1Von damnificatus; 2. That the said bond was delivered by them to the said Gibson, and not to the plaintiff, and that they had no notice of the acceptance of said bond by the plaintiff until long after the maturity of the note mentioned in the declaration ; 3. That they had no notice of the indebtedness of Gibson mentioned in the declaration until long after it fell due; 4. A plea setting out the facts pleaded in the second and third pleas. The plaintiff demurred to the second, third, and fourth pleas, and replied to the first, and the demurrer was sustained. The defendants Cox and Deason, under leave, filed several other pleas, and among them the following: 2. The mailing of notice to the plaintiff not to let Gibson have any machines, and this before any machines were delivered ; 3. That the note of Gibson mentioned in the declaration is without any consideration whatever; 4. That the plaintiff had no porver to make the contract sued on. The plaintiff’s demurrer to these pleas was also sustained. A verdict was rendered against the defendants on the issues made by the other pleas, for the amount of the note and interest. Cox and Deason, sued out this writ of error, and assign that the lower court erred in sustaining the demurrers to the pleas and refusing to extend them back to the declaration.
But it is further insisted that they are sureties on this bond ; that the instrument itself is a guaranty; and that they are therefore but sureties on a guaranty, and are entitled to all the privileges allowed bylaw to guarantors. The argument is plausible and ingenious, but unsound. If they are sureties in
We think the demurrer to the third plea of the defendants pleaded on respondeat ouster ought not to have been sustained. The plea contained a good answer to the entire action, except one dollar, and the plaintiff did not assign, as cause of demurrer that the plea professed to answer the whole action, while in truth it only answered a part. If the note, the non-payment of which is assigned as a breach of the bond, was without consideration, no recovery could be had on that account. The demurrer to this plea is ordered to be overruled. The de
Judgment reversed and cause remanded.