Ferguson v. Turner

• Decision Date: 31 May 1842
• Citation: Ferguson v. Turner, 7 Mo. 497 (Mo. 1842)
• Parties: FERGUSON, SURVIVING PARTNER, &C., v. TURNER.
• Court: Missouri Supreme Court

7 Mo. 497

FERGUSON, SURVIVING PARTNER, &C.,

v.TURNER.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS

CROCKETT, for Plaintiff.

SPALDING & TIFFANY, for Defendant.

NAPTON, J.

This was an action brought by Taylor and Ferguson against Turner, as indorser of a negotiable note. The defendant pleaded non-assumpsit, and a special plea, alleging that after the maturity of the note, Taylor & Ferguson, by a legal and binding contract with Chambers, the maker of the note, granted an indulgence of four months to the maker. Chambers, without the knowledge or consent of said Turner, and thus legally precluded themselves from coercing the payment of said money from said Chambers. To this plea there was a replication, and issue taken. The issues were found for the defendant, whereupon the plaintiff applied for a new trial, which was refused. No instructions were asked or given at the trial. The testimony is preserved by the bill of exceptions, and the first point raised here, has been upon the sufficiency of the notice of dishonor. There is much testimony on this point, but as it seems to the court, that the other point raised is with the defendant in error, it becomes entirely unnecessary to examine the notice of protest. The testimony on this head will not, therefore, be detailed. The proof under the issue on the special plea was, that Chambers, the maker of the note, having confessed judgment at the July term, 1840, a fieri facias was issued, and placed in the hands of the sheriff. Chambers had property subject to this execution, amply sufficient to satisfy the judgment. Before the return day, the plaintiff, at the instance of Chambers, directed the writ to be returned unsatisfied, and took a deed of trust upon Chambers propperty, subject to the execution, to secure the payment of the judgment within four months from the date of the deed. This deed the plaintiff neglected to have recorded, and in a short time the whole of Chambers'...