142 Ky. 578 | Ky. Ct. App. | 1911
Extended opinion oe the Court by
Bi the petition for rehearing several matters are insisted on which are not noticed in the opinion. (See Maysville Telephone Co. v. First National Bank, 140 Ky., 51.)
1. It is insisted that if the Telephone Company pays the debts amounting to $21,000, appellees should he required to deliver to it, the $21,000 of stocks and bonds, which they were to deliver to Barber when he furnished $21,000 for the payment of the debts. This matter was. not presented to the circuit court in any pleading- or otherwise so far as the record shows; it was not suggested to us on the original hearing’ and we do not think the judgment of the circuit court should be reversed at the cost of appellees for a matter not presented to it, or passed on by it. The matter will not be concluded by the judgment in these actions and may hereafter be pre sented to the circuit court by an appropriate proceeding. The sum of the agreement between Barber and Matthews was that the new company should take over the property free of debt; that Barber would furnish $21,000 for the payment of' the debts; and that Matthews, etc., should get for their property $29,000 of stocks and bonds of the new company after the debts were paid. The Telephone Company has no right to demand the $21,000 of stocks and bonds until it pays the debts. When it furnishes the $21,000 its right of action to demand the stocks and bonds will accrue. So far as'we see from the record before us, Matthews, etc., should not retain the $21,000 of stocks and bonds after the debts are paid, but should turn them over 'to the .Telephone Company upon its paying the debts; for in this way they will get what they bargained for, and the new company will get what.it bargained for; but this question is not finally determined now, as we do not know what facts may be pleaded or shown when the
2. It is insisted that the court erred in giving judgment on three claims, set up against the Telephone Company.
The State National Bank of Maysville held a note for $5,000 oh the Telephone Company on which Matthews and his associates were sureties. On January 10, 1908, the sureties executed a new note to the hank which- the bank accepted, the Telephone Company not being a party to the new note. The debt and interest then amounted to $5,278.75, and for this they asked judgment although they had not paid the note which they executed to the hank, but had only paid the interest on it. The noté which the sureties executed to the bank was due in 90 days, and when the bank accepted this note it lost its cause of action upon the old note, and had no cause of action against any one until the new note matured.. It has been held that the surety who executed his individual note for the debt in this.way, may maintain an action against his principal as for money paid. (Robertson v. Maxcey, 6 Dana, 105; Smith v. Young, 11 Bush, 395.) But it is insisted that the rule does not apply here for the reason that Matthews, etc., when they gave the new note to the bank attached to it the old note as collateral security; but this is not material. The new note operated as a payment of the debt. Matthews, et ah, then had a cause of action against the Telephone Company for the money they had paid, and this cause of action was all that was assigned to the bank as collateral security for their note. The bank had no right of action of any kind •until the maturity of the new note, and its only right then against the Telephone Company was upon the cause of action of the sureties for contribution. It is true that the State National Bank should have been made a party to the litigation in the circuit court. But that it was not made a party was simply a defect of parties which was waived by the Telephone Company when it did not make the objection. (Vanbuskirk v. Levy, 3 Met., 133; 30 Cys., 51.) If Matthews, et ah, are insolvent or any equitable reason exists for apprehending loss by the Telephone Company, if the money is paid to them, it may yet by proper action, obtain an order directing the money to be paid to the bank to the extent of its debt.
Among other notes due by the Telephone Company was one to the Bank of Maysville on which there was $530.80 of interest due. Walter Matthews borrowed this sum from the first Nationad Bank and paid it. It is said the Telephone Company did not request the payment of this interest, but this was interest on its debts, paid to obtain time from the bank, and the sureties should be reimbursed.
The opinion is extended as above indicated. The petition for rehearing is overruled.