44 Neb. 610 | Neb. | 1895
On the 21st day of August, 1888, the plaintiff and defendant, together with S. M. Lewis and J. E. Hopper, executed a promissory note as sureties for one William Mason, calling for the sum of $1,000, drawing interest at seven per cent from date, payable to the order of Robert Frost’s Sons, and maturing in two years. The principal debtor being insolvent, and having failed to pay the note at maturity, the plaintiff below, Richard J. Mason, paid the same, and on September 9, 1892, brought this action for contribution against his co-surety, A. B. Smith. The petion alleges the execution and delivery of the note; that Lewis, Hopper, and the plaintiff and defendant signed the same as sureties merely; that the principal on said note, William h^ason, had become insolvent at the maturity thereof, and the plaintiff was compelled to, and did, pay said note on the 21st day of August, 1891, and said Lewis and Hopper were insolvent when the note became due, and have been ever since said.'time; that the plaintiff requested the defendant on September 5, 1892, to pay the sum of $647.35, as his coutributive share of said note, which he refused to do, and that no part of said amount has been paid. The defendant, for answer, admits the execution and delivery of the note as alleged by the plaintiff, denies all other averments of the petition, and alleges that an extension of the time of payment of the note was granted the said'William Mason and the plaintiff, without the consent of the defendant. For further answer it is alleged that about the time the note became due the principal signer, William Mason, offered to turn over to the plaintiff property of sufficient value to pay the amount due thereon, to indemnify and save the plaintiff harmless from any loss on account of his having signed said note, but the plaintiff refused to receive or accept the indemnity so offered him and failed to inform the defendant of the fact until after this
It is insisted that the verdict is not sustained by sufficient evidence, for the following reasons:
1. Because the plaintiff has never paid the note.
2. The evidence fails to show the insolvency of the co-sureties, Lewis and Hopper.
3. That there was an extension of the time of payment, without the defendant’s consent, which released him from all liability.
We will notice these objections in the order stated. On the question of payment the uncontradicted evidence discloses that on August 21, 1891, the defendant in error paid the payees named in the note about the sum of $200 in cash, and for the remainder of the debt he executed and delivered to them his individual promissory note. At the-same time the original note was surrendered to the defendant in error with this indorsement made thereon by the holders thereof: “ One thousand two hundred and ten dollars paid August 21, 1891, by R. J. Mason, in full satisfaction of this note. R. Erost & Sons.” The evidence fails to disclose whether the note executed on August 21 has been paid by the maker or not. It is insisted that upon the facts above stated contribution cannot be enforced by the defendant in error against his co-sureties or either of them, since it has not been shown that the second note has been paid. It is well settled that before a surety is entitled to call Upon a co-surety for contribution he must have actually paid the debt. (Bispham, Principles of Equity, sec. 330, and cases cited.) But this doctrine does
The ease of Bell v. Boyd, 76 Tex., 133, cited in the brief of plaintiff in error, does not conflict with the rule above stated. In that case a principal and one of several sureties executed their note, which was accepted by the creditor, in payment of the former note. While it was held in that case that the surety upon the new note was not entitled to contribution from the sureties upon the original note, the court recognize the doctrine that, where one of several sureties discharges the original obligation by his individual note, he is in a position to recover contribution from his co-sureties. We find no fault with the decision ¡referred to. There was no payment of the original indebtedness, but merely a change in the form of the contract by the principal and one of the sureties to the first note, giving a new obligation. This had the effect to release and •discharge the sureties who did not sign the last note from their obligation to the creditor, as well as from contribution to their co-surety. Ordinarily, where one of sev
As regards the insolvency of the co-sureties, Lewis and; Hopper, the evidence in the bill of exceptions is all one-way, and shows that they are married men, and while they own some little property, it is exempt, and that nothing; could be collected from either upon execution. We think the evidence fully and clearly established their insolvency. The proofs tend to show that William Mason, the principal maker of the note, is insolvent, and payment cannot be obtained from him. Whether sufficient to establish his insolvency, is not important. According to the weight of authority, the right of the surety to recover contribution) from a co-surety in no manner depends upon the insolvency of the principal debtor, although the decisions upon the-subject are not harmonious. (Roberts v. Adams, 6 Porter [Ala.], 361; Buckner v. Stewart, 34 Ala., 529; Sloo v.
It is argued that the defendant in error was released from all liability by an extension of the time of payment of the original indebtedness. This defense is not available for two reasons : First, it is not sufficiently pleaded in the answer. It is there averred that the date of payment of the debt was extended by the creditors without the defendant’s consent, but it is not alleged that there was any consideration for such extension. In order that an agreement to extend the time of payment made by the creditor with the principal debtor may operate to release the surety, it must be for a sufficient consideration and without .the sureties’ consent. (Burr v. Boyer, 2 Neb., 265; Dillon v. Russell, 5 Neb., 484.) If the consideration for such extension must be proved, and there can be no doubt of it, it must also be pleaded. In the next place, it does not appear from the record that there was any agreement entered into for an extension of the time of payment of the original note, but the evidence shows the contrary tó be true. The note matured August 1, 1890, and was not taken up until a year later; but this fact alone did not discharge the sureties. There was but merely a voluntary forbearance on the part of the payees to enforce the collection of the note, without any consideration for the same. The mere failure to bring an action upon the note when it matured did not have the effect to release the sureties. (Dillon v. Russell, supra; Sheldon v. Williams, 11 Neb., 272.)
It is contended that the verdict is contrary to the fourth instruction to the jury given by the court upon its own motion, which was to the effect that if the jury found from the evidence that plaintiff was surety on, and was compelled to pay, the note in controversy, and that his co-sureties, Lewis and Hopper, were solvent, plaintiff was entitled to recover from the defendant a sum equal to one-fourth of
William Mason was called and examined as a witness on behalf of the defendant, and during such examination was asked this question: “State whether anything was said between you and your brother [referring to defendant in error] or on your part in relation to turning out to him, as security or indemnity, this land in payment as far as it would go, on payment of this debt.” Plaintiff objected to the question being answered, for iucompetency and irrelevancy, which objection was sustained, and an exception taken. Thereupon the defendant made the following offer of proof: “The defendant now offers to show by this witness that on or about the time the plaintiff claims to have taken up the original note, he [witness] had a quarter section of land in Furnas county, Nebraska, of the value of sixteen hundred dollars; that this land he offered to turn out to the plaintiff, his brother, Richard Mason, to indemnify and secure the payment as far as it might go on this obligation, which he claims to have taken up from Frost’s sons, and that the tender remained good for some months afterwai’ds; that the plaintiff, Richax-d Mason, without consulting with Mr. Smith or any of the parties to the note, upon his own motion refused to receive this property
In the brief filed several rulings of the court on the admission and exclusion of testimony relating to the solvency or insolvency of the co-sureties and to the extension of the time of payment of the original note are discussed, but such rulings will not be reviewed or considered by us, because of the insufficiency of the assignments in the petition in error relating thereto.
The eighth assignment in the petition in error is as follows:
“8. The court erred in excluding instructions 1, 2, and 3 requested by the defendant.”
The first and second requests were not based upon the evidence in the case, and for that reason they were properly rejected. Had the offered testimony above set out, which was excluded, been admitted, then there would have been evidence before the jury upon which to base these requests to charge. The three requests refused being grouped in the assignment in the petition in error, and as two of them were properly denied, following the repeated decisions of the court, the assignment will not be further considered. Objection is made to the third instruction, which is in the following language: “If you find, gentlemen of the jury, that plaintiff was surety on and paid this note as alleged, and that at the time, and ever since up to September 9,1892, the other parties on the note besides plaintiff and defendant were
There was an error in the assessment by the jury of the amount of recovery, but the same was cured by the entry of a remittitur by the plaintiff of the sum of $42.35. The plaintiff paid on August 21,1891, in discharge of the debt, $1,200, which, with interest at seven per cent from that time to the date of the trial, March 21,1893, one year and seven months, amounted to $1,344.10. One-half of this sum, or $672.05, was the amount for which judgment was rendered against the befendant below.
It is finally argued that the verdict should have been set aside on the ground of newly discovered evidence.
Judgment affirmed.