45 S.W. 688 (Mo. 1898), Maddox v. Duncan

Citation:45 S.W. 688, 143 Mo. 613
Opinion Judge:Burgess, J.
Party Name:Maddox v. Duncan, Appellant
Attorney:George Robertson for appellant. R. D. Rodgers and W. W. Fry for respondent.
Judge Panel:Burgess, J. Gantt, P. J., and Sherwood, J., concur.
Case Date:April 20, 1898
Court:Supreme Court of Missouri
 
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Page 688

45 S.W. 688 (Mo. 1898)

143 Mo. 613

Maddox

v.

Duncan, Appellant

Supreme Court of Missouri, Second Division

April 20, 1898

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Reversed.

George Robertson for appellant.

(1) The contract of indorsement is a new contract and is independent of the note and it is not an engagement with the maker. Edwards on Bills and Notes [3 Ed.], sec. 383; 2 Am. and Eng. Ency. of Law, 385; Beach on Modern Law of Contracts, sec. 605; Tiedeman Com. Paper, sec. 256; Dunnigan v. Stevens, 122 Ill. 396; Bowers v. Bank, 58 Ill.App. 498; Ferguson v. Staples, 82 Me. 159; Trabue v. Short, 18 La. Ann. 257; Lee v. Selleck, 33 N.Y. 615; Trimble v. Thorn, 16 Johns. 152; Bank v. Caverly, 7 Gray, 217. (2) The contract of guaranty of the note is a new contract. It is not a joint engagement with the maker of the note. Bank v. Shine, 48 Mo. 457; Graham v. Ringo, 67 Mo. 324; Pannerlie v. Williams, 71 Mo. 410; Prior v. Kiso, 81 Mo. 241; Burnham v. Gosnell, 47 Mo.App. 637; 9 Am. and Eng. Ency. of Law, 67, 68. (3) The note became due June 4, 1880. The guaranty of Duncan's was made August 8, 1877. The note was assigned by Samuel Grant to plaintiff in 1891. Suit was filed on the note May, 1893. The guaranty upon which suit is brought against Duncan is not assignable by Grant to plaintiff and plaintiff can not maintain an action thereon. Brandt on Guar. and Secur. [1 Ed.], sec. 35; Springer v. Hutchinson, 19 Me. 359; Turley v. Hodge, 3 Humph. 73; How v. Kembal, 2 McLean, 103; Irish v. Cutter, 31 Me. 536; Tinker v. McCauly, 3 Mich. 188; Ekel v. Snevily, 38 Am. Dec. 758. (4) The note became due June 4, 1880, and from that minute the statute began to run against the defendant, and it is immaterial whether he be held to be an indorser or guarantor. Action must have been commenced against him within ten years from that date. R. S. 1889, sec. 6774; Wood on Lim., sec. 134, p. 305, and sec. 146, p. 324; Williams v. Granger, 4 Day (Conn.), 444; Koch v. Melhom, 25 Pa. St. 89. The defendant is not a joint obligor with Carter, the maker, hence this case is not brought within the rule of Craig v. Callaway Co. Ct., 12 Mo. 94. The Craig case follows the rule of Whitcomb v. Whiting, 2 Doug. 652, which has been generally repudiated in nearly all the States of the Union. Wood on Stat. Lim., sec. 286; Beal v. Morrison; 1 Pet. (U.S.) 351; Freligh v. Ames, 31 Mo. 253; Dietz v. Corwin, 35 Mo. 376; Powers v. Southgate, 15 Vt. 471; Meetzler v. Todd, 12 Ind.App. 381; Van Keuren v. Pannelee, 2 N.Y. 523.

R. D. Rodgers and W. W. Fry for respondent.

(1) It is settled law in this State that a maker and indorser of a promissory note are joint obligors. Payments made on a promissory note by the maker will arrest the statute of limitations as to an indorser who has waived demand and notice. Maddox v. Duncan, 62 Mo.App. 474; Leach v. Asher, 20 Mo.App. 656; Zervis v. Unnerstall, 29 Mo.App. 474; Craig v. Callaway Co. Ct., 12 Mo. 94; Lawrence v. Dunkle, 35 Mo. 395; Smith v. Irwin, 37 Mo. 174; Mastin v. Branham, 86 Mo. 651. Our statute declares that a payment of principal or interest "by any person" will stay the statute of limitations and keep the note alive as to all parties to the note. R. S. 1889, sec. 6795; Bennett v. McCause, 65 Mo. 194; Black v. Dawson, 51 Mo. 31; Leach v. Asher, 20 Mo.App. 659; Bick v. Haas, 31 Mo.App. 183. Payment by administrator of one revives note as to others. Vernon Co. v. Stewart, 64 Mo. 408. Payment by one partner after dissolution binds both. McClury v. Howard, 45 Mo. 365; Harris v. Odeal, 39 Mo.App. 270; Shannon...

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