15 Iowa 161 | Iowa | 1863
The questions for the jury to determine, under the pleadings and evidence, were: 1st. Did the defendants, Starkey and Robinson, sign the note as sureties ? 2d. Did the plaintiffs know this fact when they extended the time of payment to Nichols ? 3d. Did the plaintiffs, for a valuable consideration, make such extension without the consent of the sureties ? These appear to have been the controverted points in the casein the Court below.
The instructions asked by the plaintiffs and refused by the Court, contain abstractly many true propositions of law, and if hypothecated upon a true statement of the evidence might have been given. But only a portion of the evidence is before us, and we cannot say but that they were refused as inapplicable. The instructions given by the Court in its charge to the jury, it seems to us, cover the whole of the legal propositions in the case, and if the Court was correct in its view of the law, it could with propriety refuse to give others asked. The Court, in its charge, thus directed the jury: “How are the defendants connected with the note sued on — are they connected with it as principals or as sureties? If their relationship to the note was that of sureties, the next inquiry will be, had the plaintiffs knowledge of this fact before the maturity of the note ? If either of these two questions is determined by the jury in the negative, the defense set up by the defendants will have failed. If the former be determined in the affirmative, and the latter in the negative, the defense will have failed. If both are determined in the affirmative, that is, that the defendants were mere sureties, and that plaintiffs had knowledge of this fact before the maturity of the note, the jury will next inquire, whether the plaintiffs did, for a valuable consideration, extend the time of payment with
This Court has, in the case of Kelley v. Gillespie, 12 Iowa, 55, recognized as correct the doctrine, that one of the joint or joint and several makers of a promissory note, may in an action at law thereon, show by evidence aliunde that he was surety for his co-maker, and that that fact was known to the payee; that in such action the surety may show as a defense that the payee, for a valuable consideration, gave further time to the principal, without his consent, and that pending such time the principal became insolvent. The instructions given by the Court, in so far as they relate to the right of Robinson and others as co-makers of the note sued on, to show their relation as sureties, and so far as they relate to the release of the co-makers by the extension by plaintiffs, as holders, to Nichols, as maker, are deemed correct under the above decision.
It is insisted upon by counsel for appellant that if the plaintiffs took the note in controversy, without the knowledge, at the time of the taking, of the relationship of principal and surety between the makers, and as they took it, believing them all to be principals, that - plaintiffs were entitled to recover; in other words, that if the plaintiffs did not know of the relationship of the makers, except as it appeared upon the face of the note, that after acquired knowledge of the fact that part of the makers were only sureties could
It is submitted that the Court erred in the admission of the deposition of the defendant Nichols. It appears that this evidence was introduced for the purpose of showing that the witness told plaintiffs that he was the principal and the other defendants were sureties when the same was negotiated. It appears that there was a variance between the description of the note as sued on and the copy of the note set out in the deposition, in relation to which the witness testified. The note declared on is made payable to the Des Moines County Savings Bank. In the copy the word “ county ” is omitted. The plaintiffs objected to the introduction of this evidence, upon the ground of a variance, and this objection'was overruled. We will concede that the rule of law is, that where the testimony is descriptive, it is required that it shall literally and exactly follow the contract sued on, or the testimony relating thereto will be excluded. But should this rule be applied in this case by this Court ? This evidence may have been followed by
Affirmed.