37 Ind. 258 | Ind. | 1871
Suit by the appellant against the appellees on the following writing obligatory:
“Twelve months after date we, or either of us, promise to pay Alexander Rittenhouse, or order, the sum of two thousand and two hundred dollars, for value received, without any relief from valuation or appraisement laws whatever.
“David Kemp, [seal.]
“December 11th, 1865. Jacob Fox. [seal.]”
Fox answered, separately, first, that he was only security on the obligation for Kemp, which fact was known to Rit.tenhouse, and that Rittenhouse, by agreement with Kemp,
The second paragraph is the sanie as the first, except that it alleges the extensions of payment, as follows: the first on the 15th day of March, 1867, from December nth, 1866, to December nth, 1867; the second on the 28th day of July, 1868, from December nth, 1867, until December 11th, 1868; and the third on the 1st day of March, 1869, from December nth, 1868, until December 11th, 1869. It is alleged that the sum of two hundred dollars was paid by Kemp to Rittenhouse at the date of each agreement, except the last, at which time one hundred dollars was paid, and a like sum agreed to be paid.
The plaintiff met these defences of Fox by pleading, first, the general denial; second, that on the--day of May, 1868, and after Fox became a maker of said note, Kemp delivered to and deposited with Fox, for the purpose of indemnifying and saving harmless said Fox from liability and loss on account of said note, and for the purpose of paying off the same, a certain note dated the-day of-, 1867, and made by William Aiken and others, by which they promised to pay to Hiram Solomon five thousand dollars on or before the 25th day of December, 1868, which note said Solomon assigned to Matilda Kemp, the wife of said David Kemp, on the - day of -, 1868, who- afterward handed said note to said David Kemp, to be by him deposited with said Fox as security, and to indemnify him as above stated, and that he, the said Fox, should pay over the proceeds of said note to said plaintiff, in satisfaction of the note on which this suit is brought; and that Kemp did so
A demurrer was filed to the second paragraph of this reply and sustained, and the point was reserved by a proper exception.
Kemp and Fox united in an answer, alleging payment, on which issue was taken by general denial.
There was a trial by the court, finding in favor of Fox, and against Kemp, motion by the plaintiff for a new trial overruled, and judgment on the finding.
But two errors are properly assigned; first, the sustaining of the demurrer to the second paragraph of the reply; and second, the refusal to grant a new trial.
There is no controversy as to the sufficiency of the paragraphs of the answer of Fox.
The whole case resolves itself into the single question as to the sufficiency of the second paragraph of the reply. If that was sufficient to avoid the matters set up in the answer of Fox, then the judgment should be reversed. If not, it should be affirmed. The note of Aiken and others was the property of Mrs. Kemp, but we shall assume, as we think we must, that she, notwithstanding she was a feme covert, could legally place it in the hands of her husband, so as to enable him to bind her, by delivering it to Fox as security or indemnity to him, as the surety of her husband, and give him a valid right to collect it from the makers, and apply the proceeds according to the agreement.
It will be seen from the dates given that Mrs. Kemp did inot acquire the noté of Aiken and others from Solomon
It is not doubted that a promise by the security, after he has been thus discharged, with a knowledge by him of the discharge, will, without any new consideration, revive his liability. This is established by the following and other authorities: Fowler v. Brooks, 13 N. H. 240; Woodman v. Eastman, 10 N. H. 359; The Bank v. Johnson, 9 Ala. 621; Thornton v. Wynn, 12 Wheat. 183; Creamer v. Perry, 17 Pick. 332. But in this case, nothing is shown, except the receipt of the collateral, a promise to apply its proceeds to the payment of the debt, and the surrender of the collateral security. No promise by Fox to Rittenhouse to pay the debt is alleged, and we think none can be implied merely from the taking of the note as security under the agreement as alleged. If it had been alleged that Fox knew that the time of payment of the note mentioned in the complaint had been extended, there would have been more reason for contending that the taking of the indemnity by him would have made him liable. Had he not been already discharged before receiving the security, and had he still retained the same, the authorities are numerous that the giving of the time would not have discharged him. Moore v. Paine, 12 Wend. 123; Eastman v. Foster, 8 Met. 19; Chilton v. Robbins, 4 Ala. 223.
But in Fowler v. Brooks, supra, where, after his discharge,
it is settled that the securities held by the surety, to indemnify him against the payment of the debt, are held by him in trust for the payment of the debt, and that the creditor may resort to them for payment of the debt. Curtis v. Tyler, 9 Paige, 431; Green v. Dodge, 6 Ohio, 80; Eastman v. Foster, supra.
In Wilson v. Wheeler, 29 Vermont,484, where the surety received from the payee the money for which the note was given, and retained it until one of the principals gave him a note against a third person for his indemnity in so signing, and he then paid it over to the principals; and they afterward made an agreement with the holder of the note,, by which he extended the time of its payment, without the consent of the surety, or of the' person whose indemnity note lie held, it was held that neither the circumstance of the sureties having received the money, nor his holding the indemni-. fying note, prevented his availing himself, as a surety, of the extension of the time of payment as a discharge of his lia- ’ bility.
But it is alleged that the note of Aiken and others was. re
We do not decide anything on the question whether or not the plaintiff could avail himself of the promise made by Fox when, the note was placed in his hands, that he “should pay over the proceeds of said note to said plaintiff in satisfaction of the note on which this suit is brought,” which is so timidly alleged in the reply. What we do decide is, that the matters set up in the reply do not prevent or estop the defendant Fox from setting up his discharge by the agreements to extend the time of payment of the note in suit, as alleged in the answer.
There is no good reason for saying that the verdict was not supported by the evidence. The note on its face provided for the payment of no interest. The indorsements on the note and the parol evidence show the extensions of the time of payment as alleged in the answers of Fox, and the payment of the ten per cent, interest was a sufficient consideration.
The judgment is affirmed, with costs.
Petition for a rehearing overruled.