123 Ark. 463 | Ark. | 1916
On January 2, 1911, J. S. Stone and Annie Eogers borrowed the sum of a thousand dollars from the plaintiff, Monroe Bowie, and they, together with W. E. Stone, the father of J. S. Stone, executed to the plaintiff their joint promissory note for .said sum of money, due and payable one year after date with 8 per cent, interest per annum until paid. The defendant, J. Gr. Thornton, indorsed his name in blank on the back of the note before the same was delivered to the plaintiff. The money tras borrowed for the purpose of paying the price of a lot of furniture purchased by J. S. Stone and Annie Eogers for use in a boarding house which Annie Eogers was operating in the city of Hot Springs in a building rented from the plaintiff, and on that date they (J. S. Stone and Annie Eogers) executed to plaintiff a chattel mortgage on said furniture and other furniture in’ the building to secure the payment of said note. Nothing has ever been paid on the note except a portion of the interest, and this is an action instituted by the plaintiff against J. S. Stone and J. Gr. Thornton to recover the amount of the note and the unpaid interest.
Defendant Thornton answered, stating, among other defenses, that he was only a surety on the note and that the plaintiff, without his consent, had, for a valuable consideration, entered into an agreement with the makers of the note for an extension of the time of payment, and also that said plaintiff had been guilty of negligence in permitting the chattels upon which he held a mortgage to be lost and destroyed without enforcing his mortgage lien thereon. The ease was tried before a jury and the court gave a peremptory instruction in the plaintiff’s favor. The question presented is whether there was evidence sufficient to warrant a submission of the issues to the jury.
■So it is in the present case. The most that the defendant claims is that the plaintiff failed to foreclose the chattel mortgage, but the duty rested upon the defendant to pay off the debt and take advantage of the security. himself if he intended to claim the advantage. Not having done that, or proceeded under the statute to require the plaintiff to sue the principals on the note, he can not complain of the loss which resulted by the destruction of the property.
Judgment affirmed.