Clark v. Clark

• Decision Date: 30 April 1885
• Citation: 86 Mo. 114
• Parties: CLARK et al. v. CLARK, Appellant.
• Court: Missouri Supreme Court

86 Mo. 114

CLARK et al.

v.CLARK, Appellant.

Supreme Court of Missouri.

April Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

J. A. Seddon and H. T. Kent for appellant.

(1) The record, as it appears before this court, shows that the motion for new trial was filed in time. Though the bill shows no motion for new trial, the court will examine all “errors of record” in contradistinction to those of ““exception.” State v. Marshall, 36 Mo. 400; O'Connor v. Koch, 56 Mo. 253. (2) The record shows that the appeal from the court of appeals to this court was taken in time. Johnson v. Hodges, 65 Mo. 590. A motion to dismiss this appeal was made in this court and was denied. (3) The assent of Jane G. Clark was necessary to the discharge in bankruptcy of her husband. 14 U. S. Stat., p. 533, sec. 33, Bankrupt Act, March, 2, 1867; 15 U. S. Stat., p. 227, act July 27, 1868; sec. 5112. Rev. Stat. U. S., 1874, act 1870; sec. ____, 18 Stat. U. S., p. 180, act June 22, 1874. Having assented to such discharge, she has discharged also Wm. G. Clark, the surety. Therefore, the court erred in sustaining the demurrer to appellant's answer. This is an error of record, and not of exception. Broadway Savings Bank v. Bernard Smucker, 7 Mo. App. 171; Eggeman v. Henschen, 56 Mo. 123; In re McDonald, 14 B. R. 477; Brandt on Suretyship, sec. 122; Callaway v. Moff, 78 Ky. 562. (4) The note sued on is a purely executory contract, as far as the surety is concerned. The consideration of the loan being none other than the property of Robert B. Clark, the principal, the contract is nudum pactum, and cannot be enforced against appellant. Morrison v. Thistle, 67 Mo. 600; Sims v. Ricket, 35 Ind. 188; Terry v. Wilson, 63 Mo. 499; Adams' Equity, marg. p. 97 (p. 224 of 5th Am. Ed.); Story's Equity Juris., sec. 793 (p. 864 of 11th Ed.); Story's Equity Juris., sec. 1375; Loyd v. Fulton, 91 U. S. 485; Halloway v. Headington, 8 Sim. 324; Edwards v. Jones, 1 Myln. & Cr. 227; Hallfield v. Wilson, 54 Ala. 276; Woodford v. Stephens, 51 Mo. 448; Walker v. Walker, 25 Mo. 367. (5) The petition is so clearly defective that no judgment can be rendered on it. For any judgment which could be rendered in pursuance of it would enure to the benefit of Robert B. Clark, the principal, who cannot be allowed to realize a judgment against his surety. Walker v. Walker, 25 Mo. 367. The judgment is entered in favor of both plaintiffs, where, at best, it could only be entered in favor of Jane G. Clark, for her own separate use. A judgment in favor of a principal against the surety is an absurdity. Though the error may be corrected, the appellant should have his costs of appeal. Bergen v. Cave, 52 Mo. 43.

A. R. Taylor and C. A. Davis for respondents.

(1) Under this state of facts, the note became the seperate property of Jane G. Clark, it never having been reduced to possession by her husband, and always having been by him recognized as the separate estate of the wife. The defendant gave his obligation to pay the note, and the covenant was his several contract to pay. Although an obligation of the principal may be void, that is no defence to the surety. Meed Co. v. Maxwell, 63 Mo. 486; Lobaugh v. Thompson, 74 Mo. 600; Parsons on Bills, 244-246; Morrison v. Thistle, 67 Mo. 600. (2) No step taken by a creditor for the discharge of a bankrupt can affect liability of surety. In re Levy, 2 Benedict, 169; Guild v. Butler, 5 Rep. 15; Brandt on Suretyship, p. 505, note 3. Again, as the note was made prior to January 1, 1869, the assent of Jane G. Clark to the discharge of Robert B. Clark was unnecessary and nugatory. In re Sheldon, 12 National Bankrupt Register, 63; In re Perkins, 1 Cent. L. J. 507; In re Frank, 6 Chicago Legal News, 414; In re Wheeler, 16 National Bankrupt Register, 277.

RAY, J.

The plaintiff, Robert B. Clark, is the husband of co-plaintiff, Jane G. Clark, and is joined with her herein by virtue of the statute, and only for the purpose of the suit. Jane G. Clark and her said husband filed the amended petition in this action June 10, 1878, in the circuit court of the city of St. Louis, on a promissory note made by said Robert B. Clark as principal, and said Wm. G. Clark, defendant, as security, for the sum of $2,000, dated December 22, 1866, and payable to said Jane G. Clark, one year after date, with eight per cent. interest per annum. The amended petition, in addition to the ordinary averments in suits upon promissory notes, avers the payment of certain and divers sums, credited on said note at the dates given, the last being within the ten years next preceding the date of instituting this suit. It also avers that the note sued on is the separate property of said Jane Clark.

The amended answer of defendant admits the execution of the note as such security, but denies that the note was of the separate estate of the wife, or that the consideration proceeded from her. It sets up that the credits thereon were not made in good faith, but for the mere purpose of preventing the bar of the statute of limitations; it pleads a release of defendant therefrom by the plaintiff in the years 1874 and 1875, and, also, payments thereof; it also sets up that since the execution of the note it became vested in said Robert B. Clark, the principal, and became thereby satisfied and discharged, and it further sets up the statute of limitations, and, also, the consent of the wife to her husband's discharge in bankruptcy, whereby his liability as security was discharged.

The plaintiffs successfully interposed a special demurrer to this last mentioned special plea of the husband's discharge in bankruptcy and the wife's consent thereto, and replied generally to the rest of said new matter set up in the answer.

The issues thus remaining were tried and determined by the court, sitting as a jury. Mrs. Jane Clark was the only witness for the plaintiff. Her evidence showed that the money loaned and for which said note was given by her husband and his brother, Wm. Clark, came to her by inheritance; that she retained possession thereof and exclusive possession, also, of the note, with the consent of her husband, and that the payments thereon were made and received in good faith, at the various dates given. Her evidence was uncontradicted, and she was, in fact, the only witness in the case who testified in this behalf. The defendant was the only witness in his behalf, and his evidence merely went to show that he signed the note in the capacity of a surety; that he never received any part of the money; that his brother, Robert, made an assignment to him for his creditors, and that the last endorsement of credit on said note was thirteen days prior to said assignment. This was all the evidence in the case.

The court gave but one declaration of law, which was for the plaintiff, and was as follows:

“The court declares the law to be that if Jane G. Clark, the plaintiff, on and prior to December 22, 1866, was the owner of two thousand dollars in money which she had received by inheritance, and that on said day she loaned said sum of money to Robert B. Clark, the co-plaintiff herein, and that in consideration of said loan said Robert B. Clark, as principal, and defendant Wm. G. Clark, as surety, executed the note mentioned in the amended petition and filed therewith, and delivered the same to Jane G. Clark on the date aforesaid, and if the said Jane G. Clark has, ever since said note was so delivered to her, kept said note in her possession, with the consent of said Robert B. Clark, up to the time that suit was brought, and if the said Robert Clark never had possession of said note, and if there was paid on said note in suit Jane G. Clark by either Robert B. Clark, the principal, or Wm. G. Clark, the security, the following sums, at the following dates, to-wit: December 22, 1866, the sum of $80; December 12, by $80; and February 20, the sum of $200; and if said payments were made and received by said Jane G. Clark in good faith as payments on said note, and if no other and further payment has been made on said note, and if said Jane G. Clark has kept the said note in her possession exclusive from her said husband, Robert B. Clark, from the time she received it to the present time, and has all the time been the owner of said note, and if she has never released the said note, then the plaintiff is entitled to recover in this action the amount mentioned in said note, to-wit: $2,000, with interest at the rate of eight per cent. per annum, to this date, less payments and interest.”

Two declarations of law were asked by the appellant, and refused by the court, but it is unnecessary to set them out. The first was in the nature of a demurrer to the evidence. The second was upon the question of good faith in making the endorsements of credit on the note, and was expressly covered by the one already given. The issues were found for the plaintiff, and judgment was given accordingly. On appeal therefrom the same was affirmed in the court of appeals, and the case is now before us on appeal from said court.

The controlling questions of law which the record presents, are: first, as to the action of the court in sustaining the demurrer to said special plea set up by the answer. The substantial facts alleged in said plea and admitted by the demurrer are, that in May, 1878, Robert B. Clark, the principal on the note, was on his own petition adjudged a bankrupt, and in November, 1878, said Jane Clark, his wife, proved up said note as a demand against said bankrupt, and thereafter assented to his final discharge as such bankrupt, which consent of said wife thereto, the appellant claims operated as a discharge of the security. The other view of this question, presented by plaintiffs, is that, as the debt, evidenced by said note, was made prior to January 1, 1869, such assent of Mrs. Clark was not necessary to her husband's discharge, under the provisions of the bankrupt law, and that said consent thereto was,...