Draper ex rel. Clifton v. Owsley

15 Mo. 613 | Mo. | 1852

Ryland J.,

delivered the opinion of the court.

From the above statement it will be seen, that the question for the consideration of the court involves the liability of Owsley to pay the notes executed by him to Draper for Clifton, upon the compromise of the suit first brought against Owsley.

Owsley was security to Shropshre in a note for the payment of money to one Conway, upon a contract between Conway and the “Hannibal Company” of which said company Shropshire was a member. This note was assigned to T. G. Draper, Secretary of the “Hannibal Company;” upon the dissolution of the company, Shropshire having previously sold cut his interest, the note of Shropshire and Owsley fell to the share ot Clifton, and was assigned to him by Draper. Some years after the maturity of this note, suit was commenced upon it by Clifton against Owsley. This suit was compromised by Owsley and Draper, the agent for Clifton; Owsley giving his notes and time, for a less sum than the original debt, to Draper foi Clifton, and Draper dismissing the suit. One of the notes given on this compromise, is the foundation of the present action.

The defendant contends, that as this suit was commenced before a justice of the peace, he can avail himself of any defense which either law or equity can afford him, and consequently, as he supposes, he might have made a successful defense against the original suit brought by Clifton against him, that he is still entitled to go behind the compromise and now assert this same defense, to these new notes.

The defendant knew all the facts and circumstances of the transaction; and having made a compromise, by which he has the suit against him dismissed, by giving his'note fora less sum and obtaining time thereon, he is bound by these notes and cannot go behind the compromise for defense he ought to have made against the original note. He is concluded by his own compromise; it was fairly made with knowledge of all the facts, let him then abide by it.

Rut take it for granted that he could make this defense, what does it amount to? Will the facts set forth by him exonerate him from the liability as Shropshire’s security to Conway? He contends, that as the “Hannibal Company,” of which Shropshire was a member, could not sue Shropshire, therefore the security is exonerated. He assumes the fact to be, that the company could not sue on the note. This may be true, as regards a court of law; but it is certain that Draper could not sue as assignee, regarding the words “Secretary of Hannibal Company” as mere descriptio personae?

If the defendant, Owsley, really supposed that no suit could have been maintained on the note of himself and Shropshire, he should have put that matter to the test, by giving the notice to sue, allowed by our statute to securities.

It is the opinion of this court, that the facts relied on by the defendant, do not constitute a valid defense to this action.

The judgment of the court below with the .concurrence of the other judges is affirmed.