71 Iowa 668 | Iowa | 1887
The defenses pleaded are (1) that there had been an extension of the time of payment of the debt by a contract between plaintiff and the principal debtor, without the knowledge or consent of defendant; and (2) that defendant had been induced to relinquish the security of a chattel mortgage given him by the principal debtor, to indemnify him against his liability on the note, by the representation of plaintiff that the note had been satisfied.
The district court ruled that these facts did not have the effect to discharge defendant from liability on the first note This holding is correct. It is certainly true that if the creditor represents to the surety that the debt is paid, and thereby induces him to surrender the security which he holds for hi? own indemnity, or even to forego the steps necessary for hi? protection, he will be estopped in the future from assorting the claim against him. Thornburgh v. Madren, 33 Iowa. 380. Rut in the present case no such representation was’ made. The only representation made by plaintiff was that defendant’s mortgage was not a lien on the property. That, however, was but a mere expression of opinion, based, doubtless, upon the fact that the note secured by the mortgage had been extinguished, as plaintiff supposed, by his acceptance of the one given in renewal. The opinion was probably erroneous, even upon the hypothesis upon which it was expressed. But that is immaterial. Defendant was not misled by it, for he took no action based upon it. Ilis consent that Herstein might take possession of the property under his mortgage was coupled with the condition that his own mortgage had been satisfied. Herstein, in taking possession of it, acted upon that consent, and the statement made by plaintiff. But defendant knew, before the property ■was sold, that his mortgage had not.been satisfied. He knew that the debt to plaintiff had not been paid. He knew, also, that plaintiff had been induced by the fraud of Hart to surrender the note which he had signed, and grant an extension-of time. Fie is conclusively presumed to have known that, upon that state of facts, he remained liable for the debt, and that his mortgage continued a valid security for his indem
'Error is assigned on the admission in the trial of letterpress copies of certain letters written by plaintiff to defendant, relating to the matters in dispute. But, if it should be conceded that the court erred in admitting them, defendant sustained no prejudice by the ruling.
The facts upon which the court’s ruling was based, and which we hold to be conclusive of the rights of the parties, were all clearly proven independently of the letters.
Affirmed.