Barnes v. Boyers
| Decision Date | 03 December 1890 |
| Citation | 12 S.E. 708,34 W.Va. 303 |
| Parties | BARNES v. BOYERS et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A plea drawn under sections 1 and 2 of chapter 101 of the Code which authorize a security to notify the creditor to institute suit against the principal, and provide, in default of his doing so in a reasonable time thereafter, that he shall forfeit his right of recovery against such surety should aver, not only the solvency of the principal at the time suit should have been instituted, but also that he then resided in this state.
2. Two partners executed a promissory note as follows --and subsequently dissolved, and the retiring member agreed with his late associate that the latter should retain the partnership property, and pay the debts of the firm, and duly notified the common creditor of this agreement, and required him to bring suit as provided in sections 1 and 2 of chapter 101 of the Code; but the creditor never assented to the arrangement, and did not bring suit until the remaining partner had become insolvent, when he brought this action. Held, that such agreement between the partners, so far as the common creditor was concerned, was res inter alios acta, and he retained unimpaired all of his rights and remedies against both partners as principals, and the said provisions in the Code for the relief of sureties do not apply to such a case.
Error and supersedeas to circuit court, Marion county.
J. A. Haggerty, for plaintiff in error.
U. N. Arnett, Jr., and W. S. Haymond, for defendant in error.
LUCAS P.
This was an action of debt in the usual from, brought by the plaintiff in the circuit court of Marion county, against the defendants, as late partners, doing business under the style of Boyers & Harden. There was a plea of payment, on which issue was joined. There was also a special plea filed, as follows: "That the note upon which suit was brought was made by the said Boyers & Harden as a partnership, then doing business under the firm name of Boyers & Harden, for a debt of the said firm; that after the giving of said note, and after its maturity, the said partnership was dissolved by agreement, by which, among other things, it was stipulated that the said John M. Harden should pay and fully discharge all the then existing debts and liabilities of the said firm or partnership of Boyers & Harden, including the said debt specified in the said promissory note on which suit was brought, of which the plaintiff had notice; that after the said dissolution of the said partnership, and after a cause of action had accrued to the said plaintiff upon the said promissory note, and while the said John M. Harden was entirely solvent and of sufficient means to have paid the whole amount of said promissory note, to-wit, on the 7th day of July, 1880, the said defendant Boyers, your petitioner, gave due notice in writing to the said plaintiff, according to the form of the statute in such case provided and made, requiring the said plaintiff forthwith to institute suit upon said promissory note; that the said plaintiff disregarded said notice in writing, and did not, nor would, either at that or at any other time during the solvency of the said John M. Harden, institute suit upon the said promissory note, but, on the contrary thereof, wholly re fused so to do; that afterwards the said John M. Harden became totally insovent, and has ever since remained and now is totally insolvent." This special plea was demurred to, but the demurrer was overruled, and issued was joined on the two pleas. In the progress of the trial the evidence offered by the defendant to sustain his plea was objected to, and the court rejected it, and the defendant excepted. No service of process was ever obtained upon Harden, and Barnes made his separate defense, as above set out.
The only question necessary to be considered in this case is whether the special plea constituted a good defense, for, if not, the demurrer should have been sustained, and the defendant was not injured by the exclusion of his testimony. The Code provides in section 1 and 2 of chapter 101 as follows:
It is obvious that, under the second section, the plea should not only have stated that Harden was solvent, but that he was a resident of this state. But, independently of this defect, it will be observed that all the rights and remedies against the principal debtor are carefully guarded in these sections, and are to remain unimpaired. And the question is whether both partners did not remain bound to creditors of the firm as principals notwithstanding the dissolution and agreement whereby, as between themselves one of them became primarily liable, and the other took the position of his security. It is not in the power of joint debtors to change their relations to a common creditor without his consent, and the plea does not allege that the plaintiff was ever consulted or ever consented to any such arrangement. In fact, he ignored the...
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