Borum v. Reed

• Decision Date: 30 April 1881
• Citation: 73 Mo. 461
• Parties: BORUM v. REED et al., Appellants.
• Court: Missouri Supreme Court

73 Mo. 461

BORUM

v.REED et al., Appellants.

Supreme Court of Missouri.

April Term, 1881.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

REVERSED.

Wallace & Chiles for appellants.

The parties intended one of two things, either that plaintiff should assume the payment of the notes of Adam Reed to Amos and others, absolutely as of his own indebtedness, or that the Reeds thereby agreed to indemnify plaintiff against loss and damage in case he should be compelled to pay these notes of Adam Reed to Amos and others; and the latter is the only fair construction to give the instrument, as there is no direct assumption and agreement in writing by plaintiff to pay these debts of Adam Reed. Isaac H. Reed was but a security on this instrument for Adam, and his liability thereon is not to be extended by construction beyond the plain and obvious meaning of the instrument. Blair v. Perpetual Ins. Co., 10 Mo. 560; Cochrane v. Stewart, 63 Mo. 424; Wales v. Nelson, 10 Mo. 19.

If plaintiff is permitted to recover in this case, then he recovers a sum of money from his principal that he has never paid and may never pay, and if, in such event, the principal should pay the debts himself, defendants would be put to a suit against plaintiff, a non-resident, to get back their money. The instrument cannot admit of a construction that would be followed by such results.

Even a deed absolute on its face, if given as security for a debt, will be construed to be a mortgage, and if the matter is in doubt, a court of equity will resolve that doubt in favor of the theory of a mortgage. O'Neill v. Capelle, 62 Mo. 202. The same liberal construction should be given to the instrument sued on in this case; and if the evidence, taken in connection with the contents of the instrument, shows that it was intended as a mere security and indemnity to plaintiff, it should be so held and treated.

The judgment is a special judgment with an award of special execution against the property attached. This is erroneous. Defendants having appeared and answered, none but a general judgment could go. Wag. Stat., 189, § 40; Jones v. Hart, 60 Mo. 357; Huxley v. Harrold, 62 Mo. 520.

W. C. Robinson for respondent.

NORTON, J.

This is a suit by attachment, commenced in the Jasper county circuit court, on a note, of which the following is a copy:

“$1,153 10-100.

JANUARY the 14th, 1878.

One day

Six months after date we, or either of us, promise to pay S. P. Borum, or order, the sum of one thousand one hundred and fifty-three dollars and ten cents, with interest at eight per cent from date, value received. This note for purpose of paying John Bonecuta the sum of $87; paying J. R. Amos $953 10-100; paying Dickson $8; and all other debts which S. P. Borum is security for.

A. REED,

I. H. REED.”

Defendants appeared and filed separate answers, in which they alleged that the said instrument, after its execution, had been materially altered by the erasure of the words “six months,” and the insertion of the words “one day;” that said alteration was made without their knowledge or consent, and had never been sanctioned by them, or either of them. The answer further set up that said obligation was given for the sole purpose of indemnifying plaintiff against loss by reason of his suretyship for defendant Adam Reed on a note to one Amos and other persons named; that said debts of Adam Reed to Amos and other persons remained unpaid, and that plaintiff had never paid any part of said debts, and that until such payment by him the obligation in suit was without consideration.

On the trial plaintiff had...