| Colo. | Apr 15, 1876
Lead Opinion
This was an action brought against Myron F. Thomas and the appellants upon a promissory note. Judgment by default was taken against Thomas. The other defendants, the appellants herein, plead the general issue, nut tiel corporation, and two special pleas, setting up in each a defense as sureties. To each of the special pleas a demurrer was allowed. Judgment was taken against all the defendants at a subsequent term.
The demurrer to this plea is general and special. The special ground of demurrer is, that the plea contains no statement of the consideration. The plea is bad. The consideration is the very gist of the agreement to extend the time, and should be truly and fully pleaded. The mere averment that the time was extended “ for a good and valuable consideration ” is not sufficient. It is but the statement of the existence of a consideration, without the facts out of which it arose. It is simply a conclusion of law which, as a rule, ought not to be pleaded. It may be laid down as a general proposition that whenever a parol agreement is declared upon, or pleaded in defense of an action (unless the agreement be a written instrument, purporting to be for value received, Prindle v. Caruthers, 15 N.Y. 425" court="NY" date_filed="1857-06-05" href="https://app.midpage.ai/document/prindle-v--caruthers-3611521?utm_source=webapp" opinion_id="3611521">15 N. Y. 425), the declaration or plea should disclose the facts from which it must appear that there was a legal consideration to support the agreement relied on. If such an averment be wanting, the court cannot on demurrer determine the legal sufficiency of the consideration. On another ground, it is necessary that the consideration should be explicitly stated, viz.: that the adverse party may not be surprised at the trial by the introduction of the testimony to prove a consideration not stated in the pleading. Marshall v. Aiken, 25 Vt. 332; 1 Chitty’s Pl. (16th Am. ed.) 300, note k; Harris v. Rayner, 8 Pick. 542; Moore v. Ross, 7 N. H. 528; Bailey v. Bussing, 29 Conn. 5.
It was not necessary to set up this defense by a special plea, as even if well pleaded, the same defense is available under the general issue. Warner v. Crane, 20 Ill. 148" court="Ill." date_filed="1858-04-15" href="https://app.midpage.ai/document/warner-v-crane-6949193?utm_source=webapp" opinion_id="6949193">20 Ill. 148.
If the plea is intended to set up an offer to pay by the principal debtor, he being solvent, the question is, does such a plea present a valid defense to an action against the sureties ? When a tender is actually made of the amount due, satisfaction of the debt is within the reach of the creditor. Glood faith to the sureties requires that he should accept the money. Sureties are liable to the creditor; but their obligation is accessory to that of the principal. When the principal makes payment, or actually tenders payment of the sum due to the creditor, he does all that the sureties are legally and equitably required by their contract to see that their principal shall do. If the creditor refuses to accept the money, when actully tendered and clearly within his grasp, he is guilty of a palpable omission of duty to thé sureties, and they are thereby released from all liability. This doctrine rests upon an intelligible ground. Joslyn v. Eastman, 46 Vt. 263. But an actual tender of money by the principal differs very widely from a mere verbal offer to pay, even though he be in a perfectly solvent condition when he makes the offer. The contract of the sureties is not that the principal will offer to pay the debt at maturity, but that he will in fact pay it, or what, so far as the obligation of the sureties is concerned, is equivalent thereto, he will make an actual tender thereof. To declare that a mere
In the absence of a valid agreement to extend the time, the rights and remedies of the creditor against the principal and sureties as well as the rights • and remedies of the sureties against the principal are unchanged. The creditor’ s hands are not tied up for a single moment; he may sue at any time. The sureties are entirely free to pay the debt and sue the principal for the amount. The relations of the parties are in no respect altered. When sureties seek to be discharged on the ground of extension of time, the controlling question is, was the extension of such a character as to bind the creditor and thereby preclude him from pursuing his remedy against the principal ? If yea, even if the suspension of the remedy be but for a day, the sureties are exonerated; otherwise, they are held. ' In the case before us, the creditor was not bound to delay suit an instant by reason of the forbearance he had extended. However high respect we may entertain for the opinion of the supreme court of Michigan, we cannot bow to its authority when so clearly in conflict with sound reasoning, and the great current of decisions.
The two remaining assignments of error, both going to the sufficiency of the entry of the judgment upon allowing the demurrer to the third and fourth pleas, are not well taken. The judgment is not, as contended, interlocutory. It clearly shows a final disposition of the third and fourth pleas and is in substantial conformity with approved pre-' cedents. Robinson’s Forms, 110.
The judgment of the court below is in excess of the ad damnum laid in the declaration, by $132. The appellee has remitted the excess, as under the authorities it may do. Consolidated Gregory Co. v. Raber, 1 Col. 513; Linder v. Monroe’ s Executors, 33 Ill. 389.
Affirmed.
Rehearing
On petition for rehearing, the following opinion was rendered by
We are unable to find in the fourth plea, what counsel supposed to be contained there. As we think the plea cannot, by any reasonable interpretation, be said to impart more than this, to wit: that the principal debtor neither produced the sum due, nor had it in hand, nor indeed elsewhere, but was possessed of a large estate and ample means and might presently have procured it.
If the allegation that the debtor was possessed of much property and ample means is not to be taken as qualifying the allegation, that he was there, prepared to pay, and as showing wherein the preparation consisted, the words are meaningless.
It is said, however, that the creditor’s refusal dispenses with the production of the money, and the actual offer of it. No case is cited to show that the creditor’s refusal will dispense with having the money present, nor can it be maintained upon authority, that the offer to produce is dispensed with by the creditor’s refusal to accept.
Now, as between debtor and creditor, the rejection of an offer to pay, under the circumstances stated in the plea, would in no respect have changed the position of the parties. The rejection of such a proposal neither impairs the right of action nor diminishes the damages. It is not effectual even to stay accruing interest nor relieve the debtor of costs in a subsequent action. The reason is, that the offer amounts to a mere proposition to perform what the debtor has already more solemnly undertaken. It is, therefore, mere empty clamor, which the creditor is under no requirement to even notice. Whether he assent, or • refuse, or maintain silence, is all one. Now if this be its effect as be
The most positive refusal of. a mere theoretical offer in words, no money being present or shown, is a nullity, whosever rights are concerned. *
The case of Ramsey v. The Westmoreland Bank, 2 Pen. & W. 203, the broadest of the cases cited by counsel, is questioned by high authority (2 Am. L. Cas. 397), but even this case does not countenance such a defense ; the money was there in court subject to the order of the creditor; in the words of the court, the creditors “ had the means of payment in their power.”
We see no reason to modify our former conclusions.'
Rehearing denied.