Noll v. Oberhellmann

• Decision Date: 19 January 1886
• Citation: 20 Mo.App. 336
• Court: Missouri Court of Appeals
• Parties: C. NOLL, Respondent, v. H. OBERHELLMANN ET AL., Appellants.

20 Mo.App. 336

C. NOLL, Respondent,

v.H. OBERHELLMANN ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jan. 19, 1886.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Affirmed.

HENRY W. BOND, for the appellants: The fact of taking a deed of trust to secure an overdue note, which deed of trust is not enforceable for a definite time, will constitute an agreement for delay for such time as the deed of trust has to run, and will discharge a security on the note secured by such trust who was not privy to the taking of the same. Smarr v. Schnitter, 38 Mo. 481, 482; Roberts v. Moseley, 64 Mo. 507. An indorser of a note who signs the same, though neither payee nor indorsee at the time, by the consent of all parties that he shall be security only, is not bound as joint maker, and is discharged by anything which, in law, would operate to release a security on the note. Spurlock v. Union Bank, 4 Humph. (Tenn.) 337; Golladay v. Bank, 2 Head. (Tenn.) 64; Belote v. White, 2 Id. 713; Swan v. Hodges, 3 Id. 254; Ford v. Dallam, 3 Cald. (Tenn.) 71; Durham v. Price, 5 Yerger, 300; Williams v. Union Bank, 9 Heisk. (Tenn.) 443; Bogart v. McClung, 11 Id. 113; Seay v. Ferguson, 1 Tenn. Ch. 294. Any act which will discharge a surety will discharge an indorser. Love v. Allison, 2 Tenn. Ch. 116; Weimer v. Shelton, 7 Mo. 237.

FISHER & ROWELL, for the respondent: The mere acceptance of the deed of trust by the respondent, without an agreement to extend the time for payment of the note in suit, did not operate as an extension, nor release Niedringhaus. At most it was only additional security. Nugent v. Curran, 77 Mo. 323; Headlee v. Jones, 43 Mo. 235; Globe Mut. Ins. Co. v. Carson, 37 Mo. 218; Rucker v. Robinson, 38 Mo. 158; Hosea v. Rowley, 57 Mo. 357; Coster v. Mesner, 58 Mo. 549; First National Bank v. Leavitt, 65 Mo. 562; Newcomb v. Blakely, 1 Mo. App. 289.

THOMPSON, J., delivered the opinion of the court.

This action is brought against the defendants as joint makers of a promissory note for five hundred dollars, made in favor of the plaintiff. The name of the defendant, Niedringhaus, was written on the back of the note, and he was neither the payee nor an indorsee of the same.

The answer of Oberhellmann was a general denial, and also a special defence, to the effect that the note had been extinguished and discharged by the subsequent giving of another note secured by a mortgage. The answer of Niedringhaus was a general denial, the same special defence as that of Oberhellmann, and, also, three other special defences, the last of which, only, need be considered, because all the others were put to the jury upon appropriate instructions, and no point is made with reference to them. This last special defence was as follows: “For a fifth defence, said defendant, Niedringhaus, says, that plaintiff, well knowing that he was only an indorser on said note without consideration for said indorsement, entered into a contract with Oberhellmann, the maker of said note, whereby it was agreed that a definite time of about three years should be given said Oberhellmann to pay said note, and in consideration of said extension, said Oberhellmann made a new note, secured by trust, to said plaintiff, and that this contract was made by said parties without the knowledge or privity of defendant, Niedringhaus; that said contract was entered into before the bringing of this suit.”

Concerning this special defence, it should be said that one of the defences set up that the understanding of the parties was that Niedringhaus was to be liable only as an indorser; that he so testified; that the plaintiff testified to the contrary; and that the court charged the jury that if there was such an agreement, they must find in favor of Niedringhaus. As their verdict was against Niedringhaus, as well as Oberhellmann, they must have found that there was no such an agreement.

Now, it is obvious that the word “indorser” was here understood by the jury to have the meaning of the word in the sense of the rule of law which entitles an indorser to seasonable notice of the non-payment of the note, for it was admitted that no such notice was given, and not in the sense of a surety. This must necessarily be so, because the evidence on both sides shows that Niedringhaus was merely a surety for Oberhellmann, and that such was the understanding of the plaintiff at the time he wrote his name on the back of the note. This testimony, that Niedringhaus was merely a surety, came both from him and from the plaintiff, and was admitted without objection.

Concerning the giving of the deed of trust, the defendant's testimony tended to show that when the note sued on had about a month in which to mature, Oberhellmann, being also indebted to the plaintiff in a further amount, tendered to her a note for six hundred and twenty-five dollars, having three years to run, secured by a certain deed of trust upon real property belonging to him, the same being the third deed of trust thereon; and that this note and deed of trust were delivered to the plaintiff and accepted by her upon an agreement that they should extinguish the prior note. On the other hand, the plaintiff's testimony was to the effect that the defendant, Oberhellmann, gave her the deed of trust, saying that a judgment was about to be recovered against him, and he wanted to give her the deed of trust; that the note recited in the deed of trust for six hundred and twenty-five dollars, was never executed, so far as she knew; that it was never delivered to her, and that she never saw it. There is no evidence in the case of any agreement between her and Oberhellman that the execution of this deed of trust should operate as an extension of the five hundred dollar note. Of the giving of this deed of trust, Niedringhaus knew nothing.

Now, the court, taking the theory of this transaction made by the testimony of Oberhellmann, charged the jury to the effect that if there was an understanding that this note and deed of trust should be received and accepted as payment of the five hundred dollar note, they must find in favor of both defendants. But the court refused to give the instructions offered by the defendants, to the effect that the giving of this new note and deed of trust, or the giving of the deed of trust to secure the note sued on, would have the effect of discharging him, provided he signed the same as an indorser or surety. The refusal so to instruct the jury raises the only question which the counsel for the appellants press upon our attention.

I. It is doubtful whether this question has been so distinctly presented by the pleadings as to put the court in the wrong for refusing so to instruct the jury. It is a principle of practice adhered to by the supreme court, that, in instructing the jury, the trial court is to confine the...