Lobaugh v. Thompson

74 Mo. 600 | Mo. | 1881

Norton, J.

This suit wTas instituted in the circuit court of Henry county, against the defendants, to recover damages for the breach of a replevin bond, wrhich defend.ants had executed as the sureties for Rachel Lobaugh, who was not joined in the suit. Defendants, in their .answer, after denying the allegations of the petition, set up as a defense that said Rachel Lobaugh, who was the .principal in the bond, was the wife of plaintiff when the said bond was executed, and when the replevin suit was brought; that the replevin suit for that reason was dismissed, and that the said bond was void by reason of the said Rachel being a married woman when she executed it. On the trial of the cause plaintiff was compelled to suffer a non-suit, because of instructions given by the court to the effect that because Rachel Lobaugh, the principal in the replevin bond, was a femme covert, the said bond was void not only as to her but also as to defendants, her sureties; and it is this action of the court that is claimed to be erroneous; and that it was erroneous, we think, is-shown by the cases of Long v. Cockrell, 55 Mo. 93, and Weed Sewing Machine Co. v. Maxwell, 63 Mo. 486, it being-held in the latter case that “while the general rule is that the extent of the liability of the surety is measured by thafr of the principal, it is not of universal application, and exceptions to it may arise when the matter of defense pleaded by the principal is wholly of a personal character, as coverture or infancy.” So in 1 vol. Parsons on Notes, page *244, it is said where one had signed a joint and several note with a married woman as surety, it was held that her successful plea of coverture was no defense to the surety.. Eor the error committed in giving instructions in contravention of the principle above referred to, the judgment will be reversed and cause remanded,

in which all concur, except Ray, J., absent.