Burge v. Duden
| Decision Date | 01 February 1904 |
| Citation | 78 S.W. 653,105 Mo.App. 8 |
| Parties | WILLIAM O. BURGE, Administrator, etc., Respondent, v. D. S. DUDEN, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Henry Circuit Court.--Hon. W. W. Graves, Judge.
Judgment affirmed.
Peyton A. Parks for appellant.
(1) If a creditor lead a surety to believe the debt is paid, and the surety is injured, he is discharged. Brandt on Suretyship and Guaranty (2 Ed.), sec. 245. (2) The surety who is a joint maker, or promisor, is discharged, if the creditor does not sue the debtor in a reasonable time, and the debtor becomes insolvent in the meanwhile. Pain v. Packard, 13 Johns. 174, 17 Johns. 384. (3) The executors of surety of a bond payable on demand, who are sued four years after its date, and after the obligator became insolvent, are not liable. Weaver v. Shryock, 6 Serg. & R. 262. (4) Where a cestui que trust, who is entitled to receive yearly the income from the trust fund, does not demand the income for nineteen years she is guilty of such laches as will preclude a recovery of the unpaid income from the sureties on the trustee's bond. 70 Hun 317; People v Donnelly, 24 N.Y.S. 437; In re Niewands' Estate, 23 Pitt's Leg. J. (N. S.) 385.
John Cosgrove for respondent.
(1) Passivity of O. F. Burge did not discharge the defendant from his liability even though he was a surety for Elgers. Daniel on Nego. Instruments, vol. 2, sec. 1339. (2) Treating the defendant as surety for Elgers the rule is the same. Russel v. Brown, 21 Mo.App. 51. (3) The answer set up no defense to the note sued on and the motion for judgment, notwithstanding the answer, was proper practice. Nelson v. Wallace, 48 Mo.App. 193; North v Nelson, 21 Mo. 360; McQuillan's Pl. and Pro., vol 1, sec. 461; 11 Ency. Pl. and Pr., pp. 1031 and 1047.
This is an action which was brought by plaintiff against defendant on a promissory note for $ 600 payable to the order of the former's intestate one year after the date thereof, to-wit, December 5, 1894, at the "Banking House of Salmon & Salmon, Clinton, Mo." The note was executed by defendant and one Elges who was not joined as a defendant.
The answer of defendant Duden admitted the execution of the note sued on and alleged (1) that defendant was merely the surety on said note and so known to be by the payee therein, the plaintiff's intestate; (2) that Elges at the time of the execution of said note and for several years thereafter was solvent; (3) that the residence of defendant was at all times well known to the payee of said note; (4) that defendant did not know at the date of said note, nor until the year 1901 the postoffice address of the payee therein; (5) that in 1897 he was informed by Elges that said note had been paid; (6) that if defendant had been advised that said note had not been paid when it became due he could have protected himself; (7) that he did not know until 1901 that said note had not been paid and that at about that time said Elges became insolvent; (8) that plaintiff for these reasons was estopped to maintain this action against him, defendant.
The conclusion of the answer was, that "defendant denies each other allegation contained in the petition." The trial court, on motion of the plaintiff for that purpose, gave judgment on the pleadings. The defendant appealed.
The facts pleaded by the answer manifestly constitute no defense to the plaintiff's action.
The statute put it in the power of defendant to require the payee of said note to bring suit thereon and provided that if such requirement be not complied with that he be exonerated from liability thereon to the payee. R. S., secs. 4500, 4501, 4502.
The answer alleges that the defendant did...
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