56 Neb. 609 | Neb. | 1898
On April 8, 1893, C. Madsen, Fred A. L. Madsen, and Ane M. Madsen executed and delivered to one Herman G, Kroncke their promissory note for the sum of $1,043.10, payable on demand. On July 9, 1893j 0, Madsen died;
Complaint is made of the giving to the jury by the judge of the following instruction requested by the defendants: “1. You are instructed that the parties to a note, one or more of whom sign as surety, are not liable thereon to the same extent as the principal to the note. The contract of the sureties is to pay only when the liability of the pricipal is fixed and ascertained, and the property of the principal exhausted; and the sureties have a right to remain exempt from liability until the liability of the principal, is fixed by a judgment at law •against him as principal and execution issued thereon, and his property exhausted.” This instruction was erroneous in more than one particular. It iis not true, as this instruction asserts, that a surety on a note is not liable for its payment to the payee as fully and to the same extent as the principal maker. The liability of the surety for the debt to the holder of the obligation is no greater and no less than that of the principal. (Wilson v. Campbell, 1 Scam. [Ill.] 493; Berg v. Rudcliff, 6 Johns. Ch. [N. Y.] 307.) Again, the' contract of the surety is absolute, and his liability does not depend upon the fact that the property of the principal has been exhausted in an attempt to collect the debt from him, nor is the right to recover against the surety conditional upon the fact that judgment has been recovered against the principal and an execution has been issued thereon and his property exhausted. As soon as the principal has made de
The third and second requests of the defendants, which were given to the jury, were also erroneous, both because they assumed the existence of evidence tending to prove a certain fact, when no evidence of that character was given; and the third request was faulty, in that it submitted to the jury for them to find whether the note in suit had been changed after it had been executed by the sureties, while no issue of that kind was presented by the pleading and evidence. For the reasons stated the judgment is reversed and the cause remanded.
Eeversed and remanded.
United States v. Cushman, 2 Sum. [U. S.] 436; Geddes v. Hawk, 1 Watts [Pa.] 280; Abercrombie v. Knox, 3 Ala. 728; Keaton v. Cox, 26 Ga. 162; Reigart v. White, 52 Pa. St. 440; East India Co. v Boddim, 9 Ves. Jr. [Eng.] 464; Kearnes v. Montgomery, 4 W. Va. 29.