McCune v. Belt

38 Mo. 281 | Mo. | 1866

Wagner, Judge,

delivered the opinion of the court.

The giving of notice to the drawer and endorser of a bill of exchange, as well as presentment for demand, is unquestionably a condition precedent to fixing their liability. No precise form or particular language is necessary in the notice; but it will be sufficient, if, either by express terms or by the necessary or natural implication of the language used, it contains in substance a true description of the bill, with a statement of its true presentment and dishonor, and that the holder or other person looks to the party to whom the notice is sent for indemnity — Sto. Rills, § 390. An immaterial variance in the notice describing the bill will not vitiate it. To be fatal, the variance must be such that, under the attendant circumstances, the notice conveys no adequate or sufficient knowledge to the party attempted to be held liable of the indemnity of the particular bill which has been dishonored. And when the notice is defective in some particulars, it may be aided by parol evidence, by showing there is no other bill in existence to which the’notice will apply. There is no controversy about the notice being in time. But the notice states that the bill was drawn and endorsed by the defendants, dated the 28th day of October, and accepted by Jno. J. Anderson & Co.-, for |5,000, when, in fact, the bill was dated the 23d day of October, drawn by the defendants, endorsed by the. plaintiff, and accepted by Jno. J. Anderson & Co. Plaintiff introduced evidence tending to prove that there was no other bill for the same amount which the defendants were on in any capacity with Anderson ; that there was no other bill of any amount that became due at the time this did ; and that there was no other bill which the defendants were on with Auderson, except as endorsers. Furthermore, it appeared from the admissions of Priest, one of the partners of defendants’ firm, that they were not misled in consequence of the discrepancy in the notice. It should have been submitted as a question of fact, whether the defendants must not have known that the notice referred to this particular bill.

From the facts appearing in the case, it is not shown that the plaintiff placed himself in such a situation with Anderson, by giving time, as would discharge the defendants, even admitting that the parties stood relatively towards each other so that the principle applying to the release of sureties, on account of delay granted to the principal debtor, could be invoked. This question has been before the court at this term, and was examined at some length, and the rule deducible from the authorities is, that to operate to release or discharge the sureties, the creditor must, by some act or agreement, tie his hands so as to suspend his right of action, or prevent his bringing suit to enforce the collection of the debt—Rucker v. Robinson et al. and authorities, ante p. 154. The case of Philpot v. Bryant, 1 Moo. & Payne, 754 ; S. C., 4 Bing. 717, was in favor of the endorser against the drawer of a bill of exchange. Shortly before the bill became due, the acceptor died, and the bill was dishonored. Subsequently, it was agreed between the executrix and the endorser that, if she would pay the interest regularly, he wonld give a reasonable time. The interest was regularly paid. It was held by the court that the plaintiff could recover, on the ground “ that the alleged agreement to give time was not binding on either of the parties, and therefore did not suspend the plaintiff’s right to proceed at any time against the representatives of the acceptor.” The case proceeded upon the ground that the acceptor was the principal debtor, and the other parties to the bill — drawers and endorsers — sureties only. Mr. J. Best expressly states that “ the acceptor of a bill of exchange is the principal debtor. All the other parties to a bill are sureties that the acceptor shall pay the bill, if duly presented to him on the day it becomes due»” This case is not distinguishable in principle from the one at bar, and may be regarded as an authority in point. Had the holder given the acceptor time, or changed the terms of the contract, the defence might be sustained ; but such is not the case. The holder used tifió requisite diligence, and fixed -the liability (assuming the'notice "to be sufficient) on the endorser and drawers ; endorser assumed the burden and took up the bill, and he cannot be considered, by this act, as standing in any other relation than that with which he was previously clothed by law. It did not make the relationship of creditor and principal debtor exist between the endorser and acceptor.

We admit, in- its broadest extent, the doctrine contended for by defendants’ counsel, that the surety has the right to demand the benefit-of all the securities which the principal gives to the creditor. Chancellor Kent, in Hays v. Ward, 4 Johns. Ch. 123, said : “ It is a settled principle in the English chancery, that a surety will be entitled to every remedy which the creditor has against the principal debtor, to enforce every security, and to stand in the place of the creditor, and have his securities transferred to him, and to avail himself of those securities against the debtor. This right of the 'surety stands not upon contract, but upon the same principle of natural justice upon which one surety is entitled to contribution from another.”’ But we cannot seethe propriety of the application of the principle to this case, as made out by the pleadings and evidence. The plaintiff was under no legal obligation to retain the contract with the Texas railroad, and pay the amount due Haskell to prevent a forfeiture. It might have been advantageous, but he was not sufficiently advised, and he possessed the undeniable right to relinquish the same if he chose to do so. Anderson was largely indebted to him, and the proof shows that the securities he received fell far short of paying-off the individual liabilities. If a part of the securities had been specifically appropriated or assigned by Anderson for the purpose of paying off and discharging the bill sued on, we can readily perceive that the defendants might be entitled to demand that the amount so appropriated or assigned should be applied to its discharge and payment

Upon this point, the evidence is not clear, and as the cause will be remanded, if there is evidence sh.owrffjg~tlfis, fact, it can be produced on a new trial.

Reversed and remanded.

Judgfe Holmes concurs;. Judge Lovelace absent.