Burton v. Rutherford

• Citation: 49 Mo. 255
• Parties: JOHN G. BURTON, Appellant, v. WILLIAM T. RUTHERFORD, ADMINISTRATOR OF HAYDEN L. RUTHERFORD, Respondent.
• Decision Date: 31 January 1872
• Court: Missouri Supreme Court

49 Mo. 255

JOHN G. BURTON, Appellant,

v.WILLIAM T. RUTHERFORD, ADMINISTRATOR OF HAYDEN L. RUTHERFORD, Respondent.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Randolph Circuit Court.

R. F. Prewitt, for appellant.

I. This cause of action did not accrue at the time the note became due, but at the time plaintiff paid Guy the money. (Singleton v. Townsend, 45 Mo. 379; 1 Pars. Cont. 36-7; 2 Pars. Bills and Notes, 253, § 7.) Nor does the administration statute of limitation of three years begin to run against a surety who pays the debt of his principal, until he has paid it. (Miller v. Woodward, 8 Mo. 169; Finney, Adm'r, v. The State, 9 Mo. 225; Chambers' Adm'r v. Smith's Adm'r, 23 Mo. 174; Hickman v. Hollingworth, 17 Mo. 475.)

II. The allowance of a claim against the partnership estate is not a sufficient allowance against the individual estate.

W. A. Hall, for respondent.

If this debt was a demand against the estate during the administration it is forever barred. Was it such? The note was due during the administration. It was in Guy's hands; he could have had it allowed. In his hands it became forever barred. Could it be revived by coming back to the hands of Burton? Burton transferred all his rights under the note to Guy; Guy forfeited all right against the estate. Could Guy, by returning the note to Burton, give to Burton rights which he had lost? The aspect of the case is not changed by Burton binding himself to Guy to see that the note was paid. Burton was bound by his assignment, without “standing surety,” to see that the note was paid, if Guy used diligence in collecting it. He released Guy from the obligation imposed by law on an assignee to use diligence. Did that relieve Burton from the consequence of Guy's failure to use diligence? He caused Guy's negligence, and now says he should not bear the consequence.

ADAMS, Judge, delivered the opinion of the court.

The firm of Rutherford & Malone, of which Hayden L. Rutherford was a partner, executed to the appellant, John G. Burton, their negotiable promissory note for $900, bearing date the 6th day of January, 1858, and due one day after date. On the 18th day of May, 1858, before the death of Hayden L. Rutherford, the appellant, wishing to realize the money on his note, applied to Rutherford for payment, who had not the money in hand; and at his request the note was sold to Irwin Guy, who purchased it with the agreement between all the parties that the appellant would become and stand as surety for the payment of the note until the same was paid, and to this end he indorsed the note in the following words, to-wit: “I assign the within note to Irwin Guy, and bind myself to stand as surety until said note is paid, this 18th May, 1858. John G. Burton.”

Hayden L. Rutherford afterward died intestate, and letters of administration were duly granted on his individual estate to the respondent, on the 28th of December, 1858, who gave notice as the law requires, and continued the administration until it was finally settled in 1866.

There was also an administration on the partnership effects of Rutherford & Malone, and this note was exhibited and allowed against the partnership administration, but not against the individual administration. In July, 1865, the appellant, as surety, paid Guy $836, being the balance of the note then remaining unpaid. After said final settlement, letters of administration de bonis non were granted on the estate of said Hayden L. Rutherford, deceased, to the...