Driskell v. Mateer

Decision Date31 January 1861
PartiesDRISKELL, Defendant in Error, v. MATEER et al., Plaintiffs in Error.
CourtMissouri Supreme Court

1. Where a surety says to the creditor that he must make the amount of the note out of the principal and the creditor replies that he need put himself to no further trouble about the note, that he has made a present of it to the principal, it was held, that the surety was not released from liability, by such assurance from the creditor, unless in consequence thereof the surety changed his situation, as by surrendering security or forbearing to obtain security.

Error to Callaway Circuit Court.

Boulware & Gardenhire, for plaintiffs in error.

I. The statement made by Driskell to Jones that he was released, as the note had been given to Mateer, the principal, operated as a release. It put the surety off his guard, and may have prevented him from giving the statutory notice. It is not necessary that the surety should have been injured. It is sufficient if he might have been. (8 Pick. 122, 131; 23 Verm. 430, 456.)

II. The statement of Driskell to Jones that the note had been delivered to Mateer as a gift is a conclusive admission against Driskell, without reference to its truth as aforesaid; for Jones had the right to act on it, and relax his vigilance, and the presumption is he did.

III. The delivery of the note to Mateer and notice to Jones that it was a gift, operated as a gift as to Jones, however the fact may have been as to Mateer. The instructions refused ought therefore to have been given.

EWING, Judge, delivered the opinion of the court.

This was an action on a note for one hundred dollars, executed to Driskell by Mateer as principal and Jones as surety.

The evidence was that the plaintiff, Driskell, told a witness that he had given the note to the principal; that it had been filed with a justice of the peace, who issued summons to the defendants, and a few days thereafter the plaintiff dismissed the suit, paid the costs and took the note, and stated that he intended to give the note to the principal; that the plaintiff told Jones (the surety) that he was relieved from all liability on said note; that upon Jones telling the plaintiff he wanted him to make the note off of Mateer, who was able to pay it, he (plaintiff) replied that Jones need put himself to no further trouble respecting it; that he had made Mateer a present of it. It was also proved that after the note was withdrawn from the justice, it was by request of the plaintiff demanded of Mateer, who delivered it up, remarking that he owed the debt and was sorry he had not been able to pay it, and it was returned to the plaintiff. It did not appear how or for what purpose the note got into...

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17 cases
  • Butler v. Gambs
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Marzo 1876
    ...Ins. Co. v. Carson, 31 Mo. 218; Headlee v. Jones, 43 Mo. 235; Nichols v. Douglas, 8 Mo. 49; Ford v. Beard, 31 Mo. 459; Driskell v. Matur, 31 Mo. 325; Hawkins v. Redenham, 13 Mo. 125; Hose v. Rowley, 57 Mo. 357. OPINION GANTT, P. J. Butler presented for allowance in the St. Louis Probate Cou......
  • Butler v. Gambs
    • United States
    • Court of Appeal of Missouri (US)
    • 21 Marzo 1876
    ...497; Globe Ins. Co. v. Carson, 31 Mo. 218; Headlee v. Jones, 43 Mo. 235; Nichols v. Douglas, 8 Mo. 49; Ford v. Beard, 31 Mo. 459; Driskell v. Matur, 31 Mo. 325; Hawkins v. Redenham, 13 Mo. 125; Hose v. Rowley, 57 Mo. 357. GANTT, P. J., delivered the opinion of the court. Butler presented fo......
  • The State ex rel. Hospes v. Branch
    • United States
    • United States State Supreme Court of Missouri
    • 14 Julio 1899
    ...and conduct of Alice as alleged, he suffered an injury resulting from a change of Branch's financial condition from good to bad. Driskill v. Matteer, 31 Mo. 325; Ass'n v. Saylor, 63 Mo. 24; Bank v. Lillard, 55 Mo.App. 65; Bank v. Danckmeyer, 70 Mo.App. 160; West v. Brison, 99 Mo. 684; De Be......
  • Langdon v. Markle
    • United States
    • United States State Supreme Court of Missouri
    • 31 Agosto 1871
    ...Smarr v. Schnitter, 38 Mo. 478; Cain v. Bates, 35 Mo. 427.) II. A mere verbal notice is not sufficient. (Freligh v. Ames, supra; Driskell v. Mateer, 31 Mo. 325; Gen. Stat. 1865, supra.) III. Even at common law a mere request by the surety to bring suit was not binding on the holder, and his......
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