Dickinson v. Vail
| Citation | 203 S.W. 635,199 Mo.App. 458 |
| Parties | SARAH M. DICKINSON, Appellant, v. W. H. Vail, Respondent |
| Decision Date | 20 May 1918 |
| Court | Kansas Court of Appeals |
Appeal from Bates Circuit Court.--Hon C. A. Calvird, Judge.
AFFIRMED.
Judgment affirmed.
Silvers & Dawson for appellant.
Templeton & Hales for respondent.
Plaintiff's action was instituted to recover an alleged balance due on a promissory note. The judgment in the trial court was for defendant.
A promissory note was given to plaintiff for four hundred dollars, signed by J. W. Trimble, Nora Trimble, J. G. Rennie W. M. Bennington and W. H. Vail. The action was dismissed as to all except defendant Vail. On the face of the note all these parties appear to be makers, but in fact, the three named last were sureties for the two named first. After the note became due plaintiff and defendant Vail entered into the following written contract: "This indenture, made and entered into this 31st day of December, 1915, by and between Sarah M. Dickinson, party of the first part, and W. H. Vail party of the second part, Witnesseth:--That, Whereas, on the 1st day of January, 1913, W. H. Vail, J. G. Rennie, and W. M. Bennington, signed as securities a certain promissory note payable to Sarah M. Dickinson, and made by J. W. Trimble and Nora Trimble, his wife; and whereas, the said note is past due and unpaid; and whereas, demand has been made on the said J. W. Trimble for payment, and he has refused to pay the said note; Now, Therefore, in consideration of the payment of the sum of two hundred and sixteen dollars ($ 216) by W. H. Vail to the said Sarah M. Dickinson, the receipt whereof is hereby acknowledged, the said Sarah M. Dickinson, has released, and by these presents does release, the said W. H. Vail from any and all further liability on the said above-described note:--Provided, That if the said party of the first part file suit against the above-named J. G. Rennie, obtain judgment, and levy execution on the goods and chattels of the said J. G. Rennie and be unable to recover the balance due on the said above-described note, then the said party of the second part agrees to pay the said balance on the said note; otherwise he is forever released as above set forth."
In compliance with this agreement plaintiff brought suit against Rennie before a justice of the peace, but judgment was rendered against her by the justice on the ground that plaintiff had extended the time of payment without Rennie's consent. She appealed to the circuit court, but negligently failed to give notice of the appeal and it was dismissed, and thus Rennie became finally discharged from obligation on the note.
Plaintiff insists that since the payment made by defendant was a payment he owed to her and was in duty bound to make, it was not a consideration...
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