121 Ind. 74 | Ind. | 1889
— 'This was a suit brought by the appellee on a promissory note and an “ endorsement.”
Answers and replies were filed, and the case having been put at issue was submitted to the court for trial, and after hearing the evidence, a proper request ■ having theretofore been made, the court returned a special finding and thereafter rendered judgment for the appellee. The appellant appeals and has assigned several errors, to wit:
“First. The court erred in overruling the demurrer of said Merriman to the complaint of said Barker, and to each paragraph thereof severally.
“Second. The court erred in sustaining the demurrer of said Barker to the first and second paragraphs of the answer of said Merriman and to each of said paragraphs severally.
“Third. The court erred in stating his conclusions of law.
“Fourth. The court erred in overruling the motion of said Merriman to change and modify his conclusions of law.
“Fifth. The court erred in overruling the motion of said Merriman for judgment on the finding of facts in his favor, and also in sustaining the motion of said Barker for judgment thereon in his favor.”
The substance of the complaint is as follows: That on the 20th day of July, 1883, Francis M. Merriman, executed and delivered his certain promissory note to the firm,
To the complaint a demurrer was filed and overruled, and the proper exception reserved.
The appellant then filed an answer, in four paragraphs; the appellee filed ^demurrers to each of them, which- demurrers were overruled as to the third and fourth paragraphs, and sustained as to the first and second. To the sustaining of the demurrers to said first and second paragraphs of answer the appellant excepted.
The first paragraph is substantially as follows: That on May 1st, 1884, the appellant and said Holmes dissolved partnership and the appellant sold all of his interest to
The substance of the second paragraph is, that about the 1st day of May, 1884, the appellant and the said Holmes dissolved their partnership, and the appellant then and there sold and transferred to said Holmes all of his interest in the partnership property ; that in consideration for said partnership effects said Holmes assumed and agreed to pay all of the debts and liabilities of said firm, including the indebtedness in this action sued on, of all which the appellee had notice; that afterwards the appellee accepted the note of said Holmes for said indebtedness; that said note extended the time for payment of said indebtedness for one day without the knowledge or consent of the. appellant; that the appellee also accepted a cognovit from said Holmes alone, authorizing a judgment to be entered against him alone for said indebtednes as evidenced by said last-mentioned note; that by virtue of said cognovit the appellee procured a judgment to be duly entered in this court on said indebtedness against said Holmes for $1,187 and costs, which said judgment is still in full force.
The substance of the special finding is: That on the 20th day of July, 1883, Francis A. Merriman executed his note
“ 1. That the plaintiff is entitled to recover of the defendant, Merriman, the amount due on said causes of action, viz.: $1,147.97.”
We find no informality in the complaint. It alleges that the appellant was a non-resident when the action against Holmes was commenced, and until long after it was finally determined. This brings the case within the exception recognized in the case of Cox v. Maddux, 72 Ind. 206. That was an action on a joint obligation. The learned judge who delivered the opinion in that case, said : “ That a judgment taken against one of the joint makers of a note or contract merges the cause of action and bars a separate action against the other maker or makers is well settled. There
The only question involved in that case was whether or not the fact that Cox was a resident of another State than the State in which Hutchinson resided created an exception to the general rule that a judgment, taken against one of two joint makers of a note or contract merges the cause of action and bars a separate action against the other joint makers. But we are asked to overrule that case. This we are not inclined to do. We think that the principle upon which that case rests is sound, and that the doctrine of merger, so as to release one joint debtor by an action and judgment against another, ought to be limited rather than extended. It is contrary to the spirit of our code, and especially so since the revision of 1881.
If our conclusion, as to the complaint, is right, then the first paragraph of the answer is clearly bad, and we do not feel called upon to spend any time in considering it.
It is well settled law in Indiana, that where there is a joint, or joint and several liability, and one of the joint obligors is the principal debtor and the other his surety, and that fact has been brought, to the knowledge of the creditor, and thereafter he extends the time of payment to the principal for a valuable consideration, without the consent of the
It is not averred that there was any agreement accompanying the execution of the note by Holmes, or the cognovit, that the appellee should not sue on the old indebtedness until the note of Holmes fell due. Ho such agreement is hinted at. For all that appears in the answer the appellee could have sued on the “ endorsement ” and the old note the very next moment after the new note was executed, without violating any agreement or contract whatever. But suppose there had been an agreement that the appellee should not sue Holmes on the old indebtedness until his note became due, and then to take judgment against him on that note by virtue of the cognovit; we can not understand how it can be claimed that that would have been an extension of time.
The result of the arrangement was to obtain judgment against Holmes in the shortest possible time; but for the cognovit the earliest date at which judgment could have been obtained was ten days.
' The agreement was an agreement whereby the recovery of a judgment was hastened, rather than postponed.
An extension of time must be such as will tie the hands of the creditors.
It must be an agreement whereby the creditor will lay himself liable to substantial damages if he brings his action in advance of the date to which the time has been extended. Menifee v. Clark, 35 Ind. 304; Bucklen v. Huff, 53 Ind. 474; Nelson v. White, 61 Ind. 139.
This brings us to the special finding, and as to it we need not spend much time. The facts as found, and as alleged in several of the paragraphs of answer, show that after the action against Holmes had been commenced on the joint obligations, he executed to the appellee his individual note, due one day after date, and a cognovit, authorizing an attorney named to confess judgment, and that the judgment which was rendered was upon the note so executed by Holmes, and not on the obligations now sued on. Upon the note of Holmes the appellant never was liable. He could not have been sued thereon. It is true, the note executed by Holmes was in consideration of the causes of action which are involved in this action, but that did not authorize an action upon it against the appellant, and hence the. judgment that was rendered against Holmes could not be a merger of any right of action against the appellant on the joint obligations. The most that can be said is, that the judgment merged the right of action against Holmes on his individual note.
The execution of the note by Holmes, under the facts alleged and found, did not have the effect to merge the liability of the appellant, or to releas'e or discharge him.
We find no error in the record.
Judgment affirmed, with costs.