11 Neb. 272 | Neb. | 1881
This action was brought in the district court of Gage county, upon a promissory note, of which the following is a copy:
“$75.00. Joliet, Will County, 111., July 17,1877.
“On or before the first day of October, 1878, for value received in one Meadow Ring Mower, No. 4040,
“Post-office, Joliet. Mathias J. "Williams.
“No. 4040. H. C. Stoll.”
The defendant Stoll answered the petition, alleging that he signed said note as surety; that the plaintiff failed to take the machine in question at the time the note became due, and apply the proceeds thereof to the payment of the note, although said Williams continued to keep said machine, and was then residing near Joliet; and that prior to the commencement of the action, he had a settlement with the agent of the plaintiff, and was discharged from the note in question. On the trial of the cause a verdict was rendered for the defendant. Judgment having been rendered in favor of the defendant, the plaintiff brings the cause into this court by petition in error.
The court further instructed the jury: “It is alleged further in the answer, that the principal debtor, Williams, was living at the place near Joliet, Illinois, where the machine was sold, and that he continued to reside there after the note became due, and that he was responsible. If you shall find this fact to exist, and that he was for some time after the note became due responsible and that no proceedings were had against.him, then you will find for the defendant.” We are unable to find any testimony in the record which would justify this instruction; and the mere failure of the creditor to institute an action against the principal at the time the debt becomes due will not discharge the surety. Dillon v. Russell & Holmes, 5
Reversed and remanded.