149 Mo. App. 482 | Mo. Ct. App. | 1910
This action was commenced in a justice’s court by H. H. Elliott filing therein on August 31, 1909, a promissory note for $125 bearing compound interest at eight per cent, per annum, dated August 8, 1901, payable to the order of H. H. Elliott twenty-one months after date, signed by M. W. Edwards and G. W. Qualls, the appellant. The suit was begun against both Qualls and Edwards, but was dismissed as to Edwards in the justice’s court because the constable had returned the summons not served on Edwards. Defendant prevailed in the justice’s court, but upon trial de novo in the circuit court, a peremptory instruction was given to find for the plaintiff the amount of the note sued on with interest as provided in the note, after deducting credits. The verdict was for $102 and judgment was entered thereon. Defendant has appealed.
I. Appellant insists that the court erred in giving the peremptory instruction. The evidence for the defense — upon the most favorable construction — is sub
J. S. Zumbrum, a witness for the defendant, stated that after the mine had burned down, he was in Elliott’s place of business to get some powder, but that Elliott would not let him have it. “I said, ‘I don’t owe you anything.’ He said, No, I don’t know as you do, but the company up there owes me for that engine.’ ”
J. S. Mitchell, defendant’s witness, testified that after the mine burned he purchased the engine for use in a greenhouse. “Q. Who from? A. Mr. Elliott. Q. Who claimed the engine then? A. Mr. Elliott told me he didn’t own the engine but that he had a mortgage on it and it had been burned and was no account and he sold it to me.” He then stated that he had never paid anything for it yet, but that he didn’t deny owing for it, but this was stricken out.
G. W. Qualls, the defendant, testified that he signed the note as surety; that about a year before the trial and after the engine was burned up, Elliott notified him to pay for the first time and that he knew nothing of the deal whereby the mining company acquired the engine.
Keeler, a member of the mining firm, could not be found, and Edwards’ father was dead.
It will thus be seen that defendant’s contention that there was such a contract of release between the creditor and the principal debtor as to relieve the surety has utterly failed. What the arrangement was between Elliott and Edwards’ father and the owners of the mine does not appear by any probative testimony. Edwards’ father had died before the trial and it was he who negotiated the deal whereby the engine was installed at the mine. Keeler, the man with whom Elliott is said
II. Appellant further contends that plaintiff at one time indorsed the note in question to a certain bank and that during said time plaintiff paid the interest in advance for an extension of time. Appellant insists that plaintiff thereby became the principal debtor, leaving appellant as a surety for him, and that the payment of interest in advance is a good consideration for an extension of time; that appellant was, therefore, released as surety. Without commenting at length on this
Before the filing of this suit, the note came bacli into Elliott’s hands. By leave of court, Elliott was allowed, before offering the note in evidence, to erase his indorsement to the bank. This was permissible. [Dunlap v. Kelly, 105 Mo. App. l. c. 4, 78 S. W. 664.]
There was no valid extension of time between the creditor and the principal debtor. The note was long past due and the principal debtor or the surety could have paid it at any time. To discharge a surety by reason of an extension of time of payment, the creditor must do some act by which he deprives himself of the right to proceed at law for the collection of the debt. [Hartman v. Redman, 21 Mo. App. 124.] The mere forbearance of a creditor to prosecute his debtor does not discharge the surety on the obligation. [Hawkins v.
Some other objections have been urged by appellant, but they are without merit. We have examined with the utmost care every point presented and carefully reviewed the evidence. The appellant, having failed in his proof, and failing to point to any material error on the part of the trial court, the judgment must be' affirmed.