73 Ind. 54 | Ind. | 1880
— The assignment of error, which first requires; consideration, is that based upon the ruling refusing appellants a new trial.
The material facts established by the evidence may be-thus summarized: Robert G. Newcome and Franklin G„. Newcome were partners under the firm name of R. & F. GNewcomo, and, by their firm; name, executed to Daniel Petty the promissory note upon which the complaint is-founded. The note is dated November 9th, 1872, and payable one day after date. Subsequent to the execution of the note, Robert Newcome died. In 1878, after the death of said Robert, the Wayne Circuit Court appointed Andrew S. Higgins receiver of the assets and business of the partnership. The receiver took into possession all the property of said firm, and was in possession thereof at and before the-time of the trial of this cause, but there is no evidence as to-the amount or value of such assets. After the execution of
“November 9th, 1873, rec’d the int. to date, say - $200
“Rec’d interest for one year - 200
“1875. November 9th, 1875, rec’d interest for one
year - - ------ 200
“Rec’d interest for year 1876 - 200”
There is no evidence showing that Daniel Petty, the payee, knew, earlier than 1874, that Knode and Hindman were sureties, but in 1874, when the payee’s agent collected the interest, he did know that they were sureties.
Appellants’ contention is, that, when the interest for 1874 was collected, an extension of time was impliedly granted for the term of six days, and the sureties thereby released. As we understand counsel’s argument, it is that the year meant by the indorsement was the time intervening betiveen December 31st, 1873, and January 1st, 1875. The argument is ingenious and st>ecious, but neither meritorious nor sound. The term “year” does not necessarily mean the period commencing with the 1st day of Januaiy and ending with the 31st day of the succeeding December. When thewmrd “year” is used, twelve calendar months are usually intended, but not necessarily the twelve months commencing with the first and ending with the twelfth month of the calendar arranged by the statute of George the Second. When the word “year” is used, its meaning is to be determined from the subject-matter of the contract, and the connection in whjch it is used. • The signification to bo affixed to it is that which will carry into effect the intention of the parties, and
The point made, that attorney’s fees Avere allowed Avithout evidence as to their value, is not entitled to consideration, because the motion for a new trial does not present any question as to the amount of the recovery.
■ The remaining question is Avhether the appellants Avere entitled to an order directing that a lery be made upon, and a sale made of, the partnership property in the hands of the receiver before seizing the property of the appellants. The court did decree that the receiver pay into court, for the use of appellee, the full amount of the judgment rendered against the appellants. This Avas as favorable an order as the appellants had any right to ask; Ave, indeed, are inclined to think one to Avhich they Avere not at all entitled. The order could have been made effective ; for, in case the receiver Avrongfully refused to obey it, the court, whose officer he Avas, could have enforced prompt and complete obedience. Ample means of enforcing the order Avere Avithin reach of the parties.
It Avould have been error to order a seizure and sale of the property in the hands of the receiver, for it Avas then in the custody of the court, and Avas not held for the benefit of any particular creditor, but for the benefit of all. No one creditor had a right to have it seized and forced to sale upon execution .for his oavii benefit. Our statute, providing for the levy and sale of a principal’s property before resorting to that of the surety, has no application at all to a case Avhere the principal’s property is in the control and custody of the court.
Judgment affirmed.