111 Ind. 137 | Ind. | 1887
Action by "William H. Beard against Robert M. Nixon, upon a contract in writing having the nature of a guaranty for the payment of money.
The complaint was in four paragraphs, all of which were held to be sufficient upon demurrer.
The defendant answered in four paragraphs. Demurrers were sustained to the second and fourth paragraphs, and, upon issues joined and a trial, the plaintiff obtained a verdict and judgment on the first paragraph of the complaint. That paragraph of the complaint charged that, on the 4th day of October, 1884, the firm of E. Pleas & Co., as principals, and the plaintiff, as surety, executed a promissory note payable to the First National Bank of New Castle, in this State, ninety days after date, for the sum of $3,083.00, at eight per cent, interest from date; that, on the 17th day of December, 1884, the said firm of E. Pleas & Co., being in embarrassed and failing circumstances, proposed to convey, assign and mortgage all its property, consisting of chattels only, to the plaintiff and defendant, to secure and indemnify the plaintiff against any loss which he might sustain by reason of his having become surety for said firm as stated, and to secure and indemnify the defendant against all loss which he might otherwise sustain on account of certain debts due him from said firm. Whereupon, at the special instance and request of the defendant, it was agreed between the plaintiff and defendant, and said firm, that said firm should convey, assign and mortgage all of its property to the defendant alone; that, in consideration thereof, the defendant should assume
The copy of the instrument in writing sued on was as follows:
“New Castle, Ind., December 7th, 1884.
“ I hereby agree to secure and protect (at any time payment must be made) W. II. Beard in the settlement of the following described note: Amount $3,083, dated October 4th, 1884, payable to the First National Bank, New Castle, Ind., ninety days after date, bearing 8 % int. from date, and waiving valuation and appraisement laws, and signed by E. Pleas & Co. and "W. H. Beard as security.
“R. M. Nixon.”
A surety on a note has also the right, without compulsion, to pay and take up the note whenever it becomes payable, and to immediately institute such proceedings as are necessary for his reimbursement. Brandt Suretyship, sections 257, 258; White v. Miller, 47 Ind. 385; Hogshead v. Williams, 55 Ind. 145.
Delay is often hazardous to the interests of a surety, and hence the law accords to him the right to proceed promptly for his own protection when his liability accrues. Considered, therefore, with reference to the rights of Beard as a surety, we construe the instrument in question as having obligated Nixon to take such measures as were necessary for the former’s security and protection whenever the payment of the note, after its maturity, might be required either by the bank or Beard, and, with this construction in view, we regard the demurrer to the first paragraph of the complaint as having been correctly overruled. Brandt Suretyship, sections 88, 89.
The second paragraph of the answer set up a want of con
Error is also assigned upon the sustaining of a demurrer to the fourth paragraph of the answer. That paragraph averred that the plaintiff, Beard, after the note became due, served a written notice on the bank, requiring it to sue thereon; that he, Beard, employed an attorney to bring suit against himself on the note; that the bank did not demand that payment “must be made;” that, consequently, Beard paid the note voluntarily and without request; that, for these reasons, there was no breach of the contract in suit on Nixon’s part.
What we have said touching the sufficiency of the first paragraph of the complaint necessarily leads us to hold that this paragraph was insufficient as a defence.
It came out in the evidence that Beard did not pay money when he took up the note against which Nixon had agreed to secure and protect him, but, instead, executed to the bank a note of his own, negotiable by the law merchant, and the point is made that the execution of such a note was not a payment in that sense which enabled him to proceed against Nixon for his indemnification and reimbursement. But the contrary is the well established law of this State.
It was held in the case of Alford v. Baker, 53 Ind. 279, that the giving of a negotiable promissory note, governed by the law merchant, for a precedent debt, will operate as a
One John W. Griffin was called and examined as a witness by the plaintiff, and was then cross-examined by the defendant and discharged. At a later period in the trial he was recalled by the defendant for further cross-examination, and the following question was propounded to him :
“ Do you believe in the Christian religion or in the existence of a Supreme Being ? ”
The plaintiff objected to this question upon the ground that the defendant had no right to recall the witness under the circumstances as stated. The court, without ruling upon the objection thus made, remarked: “ I am willing to rule that the witness can not be asked as to his religious belief.” Whereupon the defendant proposed to prove, in answer to the question propounded as above, that the witness did not believe either in the Christian religion or in the existence of a Supreme Being, but the court sustained the objection interposed by the plaintiff to the question, to which an exception was reserved.
It is claimed that, under sections 505 and 506, B. S. 1881, the question propounded to the witness, Griffin, was a proper question as affecting his credibility, and that on that account the court erred in refusing to permit the question to be answered. But our construction of the proceedings in connection with the question so propounded does not support that claim. The recalling of a witness, after he has been examined and discharged, rests in the sound discretion of the court, and, therefore, neither party can recall a witness for further examination as a matter of right. The proper practice is to ask and obtain leave of the court before at
The judgment is affirmed, with costs.