Garnier v. Papin

• Decision Date: 31 March 1860
• Citation: 30 Mo. 243
• Parties: GARNIER, Respondent, v. PAPIN et al., Appellants.
• Court: Missouri Supreme Court

30 Mo. 243

GARNIER, Respondent,

v.PAPIN et al., Appellants.

Supreme Court of Missouri.

March Term, 1860.

1. The creditors of one A. agreed to give to him and his endorsers an extension of time on their obligations. B., one of the creditors of A. signed this agreement in the following form: “B. provided I have the same endorsers for $3,500.” B. surrendered to the trustees appointed by the creditors' notes to the amount of $3,500, which were cancelled and a new note given. Held, in a suit instituted on a note not included among those amounting to $3,500, surrendered to the trustees, that the agreement to give time did not apply to the note sued on.

2. An agreement to give an extension of time on a promissory note constitutes no bar to an action thereon.

Error to St. Louis Circuit Court.

This was an action by L. C. Garnier against J. L. Papin, C. D. Sullivan, J. T. Sullivan and S. Myerson on a negotiable promissory note for five hundred dollars, dated August 17, 1857. The defendant Papin was sued as maker, the others as endorsers. The plaintiff dismissed as to Myerson. The defendants C. D. & J. T. Sullivan set up the following defence: “That, by an agreement duly executed and for a valuable consideration, said plaintiff has, with the other creditors of Joseph L. Papin, covenanted and agreed to extend all paper of said Papin, whereon these defendants here answering are endorsers, and including the note here sued on, so that the same shall be due and payable as follows: twenty per cent. thereof in twelve months; thirty per cent. in eighteen months, and the remainder of fifty per cent. in twenty-four months, from and after the first day of January, 1858.” It was agreed that the trial should proceed upon the issue raised in the answer as above set forth, and that according as that issue should be found for or against said defendants, the Sullivans, the judgment should be given against all the defendants.

The defendants introduced in evidence certain articles of agreement between said Papin and his endorsers and his creditors. By this agreement the creditors, in consideration that the endorsers, who had received securities for their endorsements, and attaching creditors, should give up and place in the hands of trustees for the benefit of the creditors, all the property held as security, and release the property attached, and in consideration of other transfers to said trustees, agreed to extend the time of payment of the liabilities of Joseph L. Papin, and to his endorsers--“notes and bills endorsed by C. D. Sullivan & Co. [and others] to be extended and paid, twenty per cent. in twelve months, thirty per cent. in eighteen months, and fifty per cent. in twenty-four months, with interest,” &c. This agreement was signed by plaintiff as follows: “Louis C. Garnier--provided I have the same endorsers for $3,500.”

It was admitted that Messrs. Hughes & Marshall were chosen trustees by the creditors; that all the creditors excepting one attaching creditor, and divers small claimants had signed said agreement; and the conveyances of property mentioned in the agreement had been made to the trustees, and that said trustees were administering the trust.

A statement of one of the trustees (Marshall) was read in evidence, subject to exceptions for incompetency and irrelevancy. From this it appeared that Garnier, upon the execution of the above agreement, surrendered notes amounting to $3,500, which were cancelled, and a new note given with Robert Forsyth as endorser. At the time Garnier signed the agreement, he said that he had another note of $500--the note in controversy--for which he had a collateral security given by Chouteau and Myerson; that he did not like to sign for that, as it might impair his collaterals. The trustee finally allowed him to sign for the $3,500. To the admission of this conversation the defendants objected. The objection was overruled.

The defendants asked and the court refused the following declarations of law: “1: There can be no evidence introduced by plaintiff so far to contradict or vary the written agreements of the parties as to establish that there existed an understanding between plaintiff and Marshall to the effect that plaintiff verbally and expressly reserved the note now sued on. 2. Any agreement between plaintiff and Marshall is not binding upon the defendants, unless it be shown that Marshall was their agent in the transaction, or that his agreement was subsequently known to and approved of by them. 3. If...