18 Mo. 140 | Mo. | 1853
delivered tbe opinion of tbe court.
1. Some of the questions which have been argued in this case, have been considered and decided in tbe case of Lewis & Brothers v. Harvey & Stewart, which was before this court on tbe docket of tbe present term. To tbe opinion in that ease, reference is made, for tbe settlement of tbe questions which are there decided, and which are presented in this case.
2. This case has some features which are peculiar. Tbe defendant, Barret, put his name upon tbe back of a negotiable promissory note, made by Wm. J. Barret, payable to Ross & Harper, and which was made for tbe purpose of securing Ross & Harper in part for tbe amount of a stock of goods sold by Ross & Harper to Wm. J. Barret. Upon this note tbe plaintiff, who is an indorsee of tbe note, files his petition against tbe present defendant, charging him as guarantor of tbe note of Wm. J. Barret. Tbe defendant answers, denying that be became a guarantor for tbe payment of tbe note, but alleges that be put bis name on tbe back of it as “ tbe surety of tbe said Wm. J. Barret;” and be not only repeats, in bis original an-'
3. Is the contract, the legal effect of which is a guaranty of the payment of a note, different from the contract of a surety ? When there are no special terms of the guaranty set out, and it is merely alleged that the party became guarantor for the payment of the note, the contract is collateral to the note itself, and bin<ls the guarantor to pay the money specified in the note, if it has been presented to the maker and he has refused to pay it. If the guarantor has not received notice of the dishonor of the note in a reasonable time, he is allowed to use such laches to defend himself against his contract, to the extent that he has been injured by want of the notice. Oxford Bank v. Haynes, 8 Pick. Rep. 428. Gibbs v. Cannon, 9 Serg. & R. 198.
. 4. In relation to the point made upon the notice given by Barret to the holder of the note, to commence suit thereon against all the parties liable, it may be sufficient to say that, when that notice was given, a suit was instituted and pending against all the parties liable on the note ; that the defendant, as well as William J. Barret, the maker of the note, were served with process, and that Bich, who is called in the defendant’s notice his co-surety, resided in the Indian country, out of the limits of the state. That action resulted in a judgment against Barret, the maker, and a return upon the execution of nulla bona; it was discontinued, as to the defendant,- and as to Bich, who was not served with process. The object of the statute is, to secure the party giving the notice against liability to pay the money when it might be collected from the principal; or more than his proportion, when it is to be collected from several co-securities. It is not an important advantage to the security giving the notice that he, himself, should be included in the action as defendant, and should have a judgment rendered against him; for, in the action brought against the other parties, the plaintiff, in order to hold the notifying security bound, must proceed with diligence to collect
The judgment is reversed, and the cause remanded for further proceedings.