48 Kan. 689 | Kan. | 1892
The opinion of the court was delivered by
This was originally an ordinary action upon a promissory note and a real-estate mortgage, brought in the district court of Harvey county by Smedley Darlington, the payee and mortgagee, against John D. Caswell and Sarah J. Caswell, husband and wife, the payers and mortgagors, to recover the sum of $866.50 and interest. The plaintiff also made the Union Stove & Machine Works, a corporation of Leavenworth, Kas., a party defendant. As the plaintiff’s claim seems to have been admitted by all the parties, and no claim of error is assigned as against him, it will not be neces
“That there was paid on said judgment the sum of $214 on the 8th day of June, 1887; that there is still due and unpaid on said judgment the sum of $807.82, after allowing all credits on the same.”
The defendants, the Caswells, replied to this answer, admitting the judgment, but alleging that it had been paid and satisfied in the following manner, to wit:
“Said John D. Caswell and Sarah J. Caswell further alJege, that since the rendition of said judgment, and on December 12, 1886, one William Fisher, being then and there indebted to said Caswell in a sum greater than the amount of said judgment, assumed the payment of the same, and the said Union Stove & Machine Works took and accepted the said William Fisher therefor in full payment and satisfaction of said judgment, taking from the said William Fisher a note for the same secured by both real and chattel mortgage, and that said Union Stove' & Machine Works has since foreclosed said mortgage by an action of replevin in the district court of Pratt county, Kansas; that by reason of the premises aforesaid said judgment has been fully satisfied, and said Caswells released and relieved from the payment of the same.”
The defendants, the Caswells, with leave of court filed the following amendment to their reply, to wit:
“That said indebtedness of said William Fisher to said J. D. Caswell arose in this manner: That on or about November 27, 1886, said J. D. Caswell sold and conveyed his stock of*691 merchandise and business house and lot in Saratoga, Pratt county, Kansas, to one William Eastland, who, as a part consideration therefor, assumed and promised to pay a note of the said J. D. Caswell to the Union Stove & Machine Works, which note was secured by a mortgage upon the business house and lot aforesaid, and also by a chattel mortgage upon the heating stoves of the stock of merchandise aforesaid; that afterwards, and on or about December 12,1886, said William Eastland sold and conveyed said stock of merchandise to said William Fisher, and said business house and lot to Bertha Fisher, the wife of said William Fisher, subject, however, to-the incumbrances placed on the same by the said J. D. Caswell to the Union Stove & Machine Works as aforesaid; and as a part of the consideration for the sale and transfer of said; business house and lot and the stock of merchandise, the said William Fisher assumed the obligation of the said William Eastland as aforesaid, and promised and agreed to pay the indebtedness of the said J. D. Caswell to said Union Stove & Machine Works as aforesaid.”
The Union Stove & Machine Works replied to the Caswells’ reply by filing a general denial. Afterward the case was taken on a change of venue to the district court of Reno county, where it was tried upon the foregoing pleadings, and as between the Union Stove & Machine Works and the Caswells before the court and a jury, and the jury rendered a general verdict in favor of the Caswells and against the Union Stove & Machine Works, and also made certain special findings of fact, which verdict and findings, omitting formal parts, read as follows:
“verdict.
“We, the jury duly impaneled and sworn in the above entitled case, do, upon our oaths, find for the defendant J. D. Caswell.”
“special findings.
“1. Did the Union Stove & Machine Works ever agree to-release the defendant Caswell from the payment of said judgment and take one Fisher for the payment of the same? Ans. Yes, they did through their agent, McGrrew.
“2. If you find that the Union Stove & Machine Works accepted Fisher as paymaster of the judgment in question and released defendant Caswell from the payment of the same,*692 ■state what witness or witnesses testified to that fact? A. Note and mortgage.
“3. Was it not expressly agreed between the Union Stove & Machine Works Company and Fisher, at the time Fisher gave the chattel mortgage to the Union Stove & Machine Works Company, that it was given as additional security for the Caswell judgment, and that Caswell was not to be released from the payment of said judgment? A. It was not.
“4. If you answer the above question in the negative, then state fully what the agreement between Fisher and the Union Stove & Machine Works was at the time said mortgage was given? A. Note, mortgage, and extension of time.”
The court rendered judgment in accordance with the general •verdict; and the Union,Stove & Machine Works, as plaintiff in error, brings the case to this court, making the Caswells the defendants in error.
The first alleged error is the ruling of the court permitting the Caswells to introduce evidence tending to prove payment and satisfaction of the aforesaid judgment. There was certainly no error in this, for although the Caswells admitted the judgment and did not specifically deny that anything was due thereon, yet they substantially alleged that the whole of it had been paid and was satisfied; and this, under the facts of the ease, was better than a denial.
The next alleged error is, that the court permitted certain papers supposed to constitute copies of certain deeds, mortgages, etc., to be introduced in evidence. There does not apappear to be any error in this. The originals of the papers were not within the custody or the control of the Caswells, and the copies introduced in evidence seem to have been properly certified copies, and they were introduced in evidence under §372 of the civil code. (Hammerslough v. Hackett, 30 Kas. 58.)
The next alleged error is the overruling of the demurrer of the Union Stove & Machine Works to the evidence of the defendants Caswell. The substantial question presented by the demurrer to the evidence was, whether the evidence of the Caswells proved their, alleged defense, that the aforesaid
Under- the evidence introduced in this case, it is claimed by the Union Stove & Machine Works that the foregoing judg
“A purchaser having assumed the payment of an existing mortgage and thereby become the principal debtor, and the mortgagor a surety of the debt merely, an extension of the time of payment of the mortgage by an agreement between the holder of it and the purchaser, without the concurrence of the mortgagor, discharges him from all liability upon. it. The holder cannot enlarge the time of payment and protect himself by reserving his rights against the surety in the agreement of extension. Such a reservation has no effect unless the mortgagor agree to it.”
See also, upon the general subject of releasing the surety by the extension of the time for the payment of the debt by the creditor to the principal debtor: 2 Brandt, Sur. (2ded.), §§359, 360, 363, 364, 369, 372, 373, 375.
With the views above expressed, the question then arises, was the time for the payment of the debt in the present case ■ extended? The note and chattel mortgage taken by the Union Stove & Machine Works from Fisher were not to be paid or to be due for 10 days after their date. They were intended, however, by the Union Stove & Machine Works to be taken only as additional security. Now it is true that any kind or any amount of additional or collateral security may be taken by the creditor without discharging a surety on the original debt, provided the time for the payment of the orig- ■ inal debt is not extended. But was that the case in the pres
Before closing this discussion, it would perhaps be well to •quote a portion of § 1312 of 2 Daniel on Negotiable Instruments (4th ed.), as follows:
“The principle that whatever discharges the principal discharges the surety is of extended application, and it is operative whenever anything is done which relaxes the terms of the exact legal contract by which the principal is bound, or in •anywise lessens, impairs, 'or delays the remedies which the creditor may resort to for its assurance or enforcement. For, whenever the creditor relaxes his hold upon the principal ■debtor, he impairs the hold upon him which the surety, would acquire by substitution in his place on making payment; and good faith aud fair dealing require that the surety should not be exposed to the injuries which might thus be inflicted upon him. In the immense majority of cases the act done does not actually damage the surety a shilling, yet the doctrine is so firmly established that only legislative enactment can ■change it.”
We have now considered every substantial question in this •case. There-are other questions presented by counsel’s briefs; but with the views that we entertain we do not think that it as necessary to discuss them.
The judgment of the court below will be affirmed.