Plankinton v. Gorman, 93 Wis. 560

93 Wis. 560 | Wis. | 1896

Mabshall, J.

There was no motion for a new trial before judgment. Therefore the question of whether the verdict is sustained by the evidence is not before us. Kirch v. Davies, 55 Wis. 287. It is argued on the part of respondent that, for want of a motion for a new trial before judgment, this court cannot review the rulings of the trial court in dir recting the verdict for plaintiff. Such is not the la'Vf. A motion for a new trial is only necessary to preserve for review errors committed by the jury. Errors committed by the court are reviewable without such motion. Improperly directing a verdict is such an error, which, if properly excepted to and preserved in the bill of exceptions, can be reviewed on appeal from the judgment.

The facts are uncontroverted that plaintiff in form executed and delivered an instrument reciting as a fact that the claim on the note against the brewing company had been fully paid, satisfied, and discharged, and in consideration thereof plaintiff released and discharged such company, its assignee, and the assets held by him from such claim; that there were sufficient funds or assets in the hands of such as-signee to pay the claim; that plaintiff had an interest in or lien upon such assets to the amount of such claim, which he surrendered without the consent of the second indorser, the appellant. Did such release, under the circumstances, whether the note was actually paid or not, have the effect to release appellant from the obligation of his indorsement ? If so, the court erred in directing the verdict for plaintiff, and the other questions presented for review need not be considered.

The general rule is that while a creditor who has a claim against principal and surety is not bound to proceed against the principal, if he does, and obtains a lien upon his property for the payment of the debt, and then releases it without resorting to proper proceedings to make therefrom satisfaction of such debt, the surety is released. Maquoketa v. Willey, 35 Iowa, 323; 3 White & T. Lead. Cas. Eq. (Hare & W. Notes), 552; Chambers v. Cochran, 18 Iowa, 159. Such rule applies between successive indorsers. Sprung v. George, 50 Hun, 227; Smith v. Erwin, 77 N. Y. 466; Shutts v. Fingar, 100 N. Y. 539. The cases cited are to the effect that, though a creditor is not hound to take active measures to collect the debt, and after commencing may stop short when, if the proceedings were pursued to the end, they would result in enforcing payment, if the creditor once gets hold of or a claim on property of the principal, applicable to the payment of the debt, and then voluntarily releases it to the prejudice of the surety, such surety is discharged. In Smith v. Erwin, supra, the decision was adverse to the indorser. It was placed on the ground that the creditor had not actually obtained a lien upon the property and then abandoned, or released it, but had simply neglected to obtain a lien when opportunity therefor existed. As said in Spring v. George, supra, the effect of the decision is that, if the'sheriff who held the execution, instead of merely neglecting to levy on the property to satisfy the debt when he might have done so, had made a levy, and then plaintiffs had given such directions to the sheriff as deprived them of the lien thus obtained, the indorser would have been discharged; and such is unquestionably the law. Allen v. O'Donald, 23 Fed. Rep. 573; Daniel, Neg. Inst. § 1311; 1 Parsons, Notes & B. 242; Byles, Bills, 253, note; Priest v. Watson, 75 Mo. 310; Winston v. Yeargin, 50 Ala. 340; Sample v. Cochran, 82 Ind. 260.

Here, as between appellant and the Obermann Brewing Company, the latter was liable for the debt. As soon as plaintiff filed his claim in the assignment proceedings, he obtained an interest in or lien on the funds or assets in the hands of the assignee for its payment, which, if enforced, would have satisfied such claim. Plaintiff became a trustee in respect to such lien or claim for the benefit of the appellant, and his subsequent voluntary release of such lien or claim, without appellant’s consent, ended the latter’s liability on the note.

It follows that the court erred in directing the verdict in favor of the plaintiff, for which error the judgment must be reversed and a new trial granted.

By the Oowrt.— The judgment of the superior court is reversed, and the cause remanded for a new trial.