Briggs v. Latham

• Decision Date: 04 February 1887
• Citation: 13 P. 129,36 Kan. 205
• Parties: ELLIS BRIGGS v. L. D. LATHAM
• Court: Kansas Supreme Court

13 P. 129

36 Kan. 205

ELLIS BRIGGS v. L. D. LATHAM

Supreme Court of Kansas

February 4, 1887

Error from Bourbon District Court.

ACTION by Briggs against Latham, to recover on an alleged guaranty of a mortgage. Trial at the December Term, 1884, and judgment for defendant for costs. The plaintiff brings the case here. The opinion states the facts.

Judgment affirmed.

Ware & Ware, for plaintiff in error.

W. S Coy, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This was an action brought in the district court of Bourbon county by Ellis Briggs against Lafayette D. Latham, to recover $ 1,690 and interest thereon, on an alleged guaranty of a mortgage, which reads as follows: "I hereby guarantee the payment of the within mortgage.--L. D. LATHAM."

Among the undisputed facts of the case are the following: The above-mentioned mortgage was executed on July 14, 1876, in Minnesota, by Cornelius Quirk, of Oconto county, Wisconsin to Dellen N. Latham and her husband, Lafayette D. Latham, of Cook county, Illinois, for land situated in Minnesota, and was executed to secure four promissory notes, each dated July 14, 1876, each for $ 422.50, each executed by Cornelius Quirk to Dellen N. Latham, and due respectively as follows: October 1, 1877, October 1, 1878, October 1, 1879, and October 1, 1880, and each made payable at the First National Bank of Austin, probably in Cook county, Illinois. Mrs. Latham owned the notes and mortgage, and she indorsed the notes in blank and authorized her husband, Lafayette D. Latham, as her agent, to sell the notes and mortgage to any person who might choose to purchase the same, and he sold and delivered them to Peter Dunbar. Afterward he indorsed upon the mortgage the above-mentioned written guaranty. This guaranty was made and these last-mentioned transactions were had in the city of St. Louis, Missouri, although the parties at the time resided in Illinois. Latham, however, owned property in St. Louis, and spent a considerable portion of his time at that place, and Dunbar was also very frequently there on business. Afterward Dunbar assigned the notes to the Roodhouse Bank, of Roodhouse, Illinois, as collateral security. Afterward Mrs. Latham and her husband made a formal assignment of the notes and mortgage to the Roodhouse Bank. Dunbar also owed L. C. Barrett and Ellis Briggs, and in pursuance of certain transactions and understandings had between Barrett, Briggs, and the Roodhouse Bank, the Roodhouse Bank assigned the notes to Briggs, the plaintiff in this action. This action was commenced on July 8, 1882. Nothing has been paid on the notes or the mortgage except the interest up to October 1, 1877. The case was tried before the court without a jury, and the court made the following special findings of fact:

"1st. There was no consideration for the guaranty written by the defendant upon the back of the Quirk mortgage set out in plaintiff's petition.

"2d. During all the time of the existence of the alleged guaranty, Mrs. Dellen N. Latham was solvent, and no demand was ever made upon her for the payment of said notes, or any one of them after their maturity, and no notice of non-payment was ever given to her.

"3d. A true copy of the Quirk mortgage is as set up in plaintiff's petition.

"4th. The court finds all other facts, allegations and issues involved in the pleadings and case in favor of the plaintiff."

Upon these findings the court rendered judgment in favor of the defendant and against the plaintiff for costs. Afterward the plaintiff moved to set aside the first and second findings, and also moved for a new trial; which motions were overruled, and the plaintiff excepted, and, as plaintiff in error, brings the case to this court for review. The plaintiff, however, in bringing the case to this court, has not brought any of the evidence. (Pritchard v. Madren, 31 Kan. 38; Ort v. Patrick, 18 id. 382; Turner v. Hale, 8 id. 38.) Nor has he brought any of the pleadings to this court, except the third amended petition and the answer thereto, and the reply to such answer. (Brookover v. Esterly, 12 Kan. 149, 152, 153; Moore v. Cutler, 18 id. 607.) Hence our decision in this case must be founded solely upon such of the pleadings as have been brought to this court, and the above special findings. Presumptively, the findings are sustained by the evidence; presumptively, they are proper findings in the case; and, presumptively, the case was tried by both parties in such a manner as to indicate to the court that such findings would be at least responsive to the issues made by the pleadings in the case; and if any of these presumptions are ill-founded or not true, to the prejudice of the plaintiff, it devolves upon him to show the same affirmatively to this court. Defective pleadings, or a want of pleadings, may sometimes be waived or cured by the subsequent proceedings in the case. (Walker v. Armstrong, 2 Kan. 198; Meagher v. Morgan, 3 id. 372; Smith v. Burnes, 8 id. 197; Mitchell v. Milhoan, 11 id. 617, 626; Holden v. Clark, 16 id. 346; Netcott v. Porter, 19 id. 131; Grandstaff v. Brown, 23 id. 176; Conaway v. Gore, 24 id. 389; Bierer v. Fretz, 32 id. 330, 337, 338.) And may not any supposed defects in the pleadings in this case, or any supposed want of issues, have been waived or cured by the subsequent proceedings in the case? But may not even the pleadings themselves have been amply sufficient? From anything appearing in the case, the findings may have been sustained by ample evidence; and the evidence may have been introduced without the slightest objection on the part of either party, and upon the theory that it was competent and proper to sustain the issues in the case. The plaintiff admits that the first finding is within the issues made by the pleadings, and that it is sustained by sufficient evidence; and this is probably also true with respect to the other findings, though as to the second finding the plaintiff does not admit that it is true.

The first question which we shall consider is, whether it was necessary that there should have been some consideration for the written guaranty indorsed upon the mortgage. We think this question must be answered in the Mr. Daniel, in his work on Negotiable Instruments, § 1759, says: "It is necessary to the validity of a guaranty that it should be upon a valuable consideration." Mr. Randolph, in his work on Commercial Paper, § 856, says: "Every guaranty, like other contracts of parties to commercial paper, requires a consideration." Mr. Parsons, in his work on Notes and Bills, vol. 2, p. 125, says: "As a guaranty is an independent contract, it must be made upon a sufficient consideration." And, indeed, upon this subject all the authorities concur. "A guaranty is a collateral engagement to answer for the debt, default or miscarriage of another person." (De Golyar on Guaranties, etc., 1; Chitty on Contracts, 10th Am. ed., from 3d Eng. ed., 546.) In other words, a guaranty is a contract in and of itself; but it also has relation to some other contract or some obligation with reference to which it is collateral; and it always requires a consideration. It is true, that where the guaranty is executed at or about the time of the execution of the main contract, and both contracts form parts of the same transaction, one consideration may support both contracts. It is also true, where a contract is sold and assigned, and the guaranty is executed in contemplation or in pursuance of such sale and assignment, one consideration may support both the sale and the guaranty. But in all cases where the guaranty is executed after the execution of the original contract, or after a sale thereof, and not in pursuance of any understanding had at the time of the execution of the original contract or at the time of the sale,...