74 Ind. 418 | Ind. | 1881
Lead Opinion
Lohman sued John Pattie, John A. Pattie and Thomas E. Smith, formerly partners as Pattie, Smith & Co., and the appellant, upon a promissory note, on which Pattie, Smith & Co. were the principals and the appellant was surety. The makers were defaulted. Taylor answered, and the issues raised by his pleadings were submitted to the court for trial, which found for the plaintiff. Taylor moved for a new trial, and for cause alleged that the finding was contrary to law ; that it was contrary to the evidence, and that it was not supported by the evidence. The motion was overruled, and judgment entered on the finding. The question before us is, did the court err in overruling the motion for a new trial? The case comes here on the evidence solely. This is brief, and as it discloses the nature of the defence pleaded, and is necessary to an understanding of the question involved, we state it. The defendant first introduced the note in suit, which was dated February 11th, 1870, payable twelve months after date, with ten per cent, interest. Credits of the interest accrued up to July 30th, 1876, and payments of $100 March 22d, 1873, and $200 May 17th, 1877, were endorsed upon the note. The remaining evidence is thus given in the bill of exceptions : “John Taylor, defendant, on his own behalf, testified as follows, to wit: Was first shown the note sued on, and says it is his signature; that he signed it as security for Pattie, Smith & Co. ; that the note was executed by Pattie, Smith & Co. some weeks before he signed it; that there were two notes signed by' him. Mr. Lohman had the note sued on in his possession at the time I signed it. The two notes amounted to eight hundred dollars, and were both signed at the same time. From four to six months after the notes were due, I asked Mr. Lohman, in the city, if the notes had been paid. He said, ‘No.’ I then told him to go and see Mr. Pattie and have them settled up. A week later I came down to'town and called at Pattie’s office, but did not see Lohman at that time. Two
“Cross-examined. — T never gave any written notice toLohman to sue.’ ”
John Pattie testified : “I heard Taylor’s testimony about the conversation. Mr. Taylor wanted his name off the-notes. 1 told Lohman I would not give any other security.. If he would let us, Pattie, Smith & Co., have the money on our own note, we would keep it; otherwise,would pay him off. He said he did not waut the money ; he would take Taylor's name off the notes. He did not have the notes with him. He said he would bring down the notes and fix the matter-up — get new notes or take the money. We had the money in bank to pay the notes.”
“It was admitted by plaintiff that Pattie, Smith & Co. have become insolvent, and are insolvent. One of the notes-was paid by Pattie, Smith & Co.”
And this was all the evidence.
This action was commenced December 26th, 1878, more than seven years after the arrangement by which Taylor was to have been released from his liability on the note. The record does not show when Pattie, Smith & Co. became insolvent, but it was probably but a short time before suit, as they paid $200 of the principal of the note May 17th, 1877, and on July 16th, 1878, paid all the interest due to that date. During all this time no notice was given to the surety that the arrangement made between himself, Lohman and Pattie, Smith & Co. had not been consummated. From the anxiety manifested at that time by Taylor, to be discharged from his liability on the note,.the conclusion is irresistible that he would have given statutory notice to the holder to seasonably sue thereon (2 R. S. 1876, pp. 276-7), or have taken other measures to protect himself. To keep the surety so long in ignorance that the note had neither been paid, nor exchanged for the note of Pattie, Smith & Co., had all the effect of a fraudulent concealment of facts, whether so intended or not.
Had there been no element in the case, other than more delay on the part of the appellee to enforce payment of the note, the surety would not be discharged from liability; but, by the agreement testified to by the witness Pattie. if the appellee did not elect to receive payment from Pattie,
There being no conflicting testimony, this court will weigh-the evidence, and give it such effect as, in its judgment, should have been given by the court which tried the cause. Jamieson v. Miller, 54 Ind. 332; Roe v. Cronkhite, 55 Ind. 183.
For error of the court below, in overruling appellant’s motion for a new trial, the judgment ought to be reversed.
Per Curiam. — It is therefore ordered, on the foregoing-opinion, that the judgment below be, and the same is hereby, in all things reversed, at the costs of the appellee, with instructions to the Jefferson Circuit Court to grant the appellant a new trial.
Rehearing
On Petition for a Rehearing.
The petition claims that the evidence did' not sustain the answer. The first paragraph of the answer-sets forth the facts specially, alleging that thereby the defendant “was discharged from all liability on the note.”' Among the facts stated ivas the following: “That the plaintiff then and there did reloan said money to Pattie, Smith & Co. and kept it on loan to them alone from 1872 to 1878.”
The second paragraph alleged payment of the note by Pat-tie, Smith & Co. before suit brought. The third paragraph pleaded a discharge of the defendant by the plaintiff, for a good and valuable consideration.
The evidence is fully stated in the opinion of the court: heretofore given.
We think that the evidence did sustain the answer. When,
The evidence in the case shows that the special transactions between the parties took place in 1871, and that the principal debtors paid interest on the money for several years afterward, and actually paid the money mentioned in one of the notes; the last payment of interest on the note in suit was in July, 1878, and this suit was brought in December, 1878 ; the principal debtors having become insolvent, and the note in suit having been permitted to remain in .the possession of the creditor, he brings suit upon it, claiming that
The petition for a rehearing ought to be overruled.
Per Curiam. — Petition overruled.