Globe Mut. Ins. Co. v. Carson

• Decision Date: 31 October 1860
• Citation: 31 Mo. 218
• Parties: GLOBE MUTUAL INSURANCE COMPANY, Respondents, v. CARSON et al., Appellants.
• Court: Missouri Supreme Court

31 Mo. 218

GLOBE MUTUAL INSURANCE COMPANY, Respondents,

v.CARSON et al., Appellants.

Supreme Court of Missouri.

October Term, 1860.

1. An application for a continuance made two months after answer filed, which sets out that one of the co-defendants (not served with process nor answering to the suit) is a material witness and absent; that said witness alone of defendants had a personal knowledge of the facts to be proved; that defendants served notice on the plaintiff to have his deposition taken; that it was indispensable that one of the defendants to whom the management of the case was entrusted should attend the taking of said deposition, but that he was prevented from so doing by sickness in his family, which was the sole cause of the deposition not being taken, held, to be insufficient in not showing due diligence, it not appearing but that the deposition might have been attended to as advantageously by an attorney, since the witness was familiar with the facts to be proved, or that it might have been taken at some other time when the defendant could have personally attended to it.

2. A valid agreement between the maker and payee of a promissory note to give further time on it will discharge the endorser unless he assents to it.

3. But the taking of a new security from the maker will not have the effect to discharge the endorser unless it is accompanied by an agreement which postpones the remedy.

4. Where a note payable in sixty days was taken as collateral security for another note then due, held, that it did not operate to suspend the remedy or release the endorsers upon the latter.

5. Mere indulgence to the maker of a note on receiving securities from him does not discharge the endorser in the absence of any valid agreement for postponing the time of payment to any definite period.

Appeal from St. Louis Circuit Court.

This was an action on a negotiable promissory note for $811, made by William P. Davis, dated April 17, 1857, payable six months after date, to the order of defendants Carson and Springer, and endorsed by them, and then negotiated by said Davis to the plaintiff.

The defendants Carson and Springer set up in answer for themselves, that they signed the note as accommodation endorsers, of which fact the plaintiff had knowledge; that no consideration passed between plaintiff and defendants; that after the maturity of said note and about the first of January, 1858, the plaintiff, without the knowledge or consent of defendants, received from said Davis another note of said Davis and other parties, payable sixty days after date, and that plaintiff then agreed with said Davis that in consideration of this second note, the payment of the note sued on in this case should not be enforced till the expiration of said sixty days; by reason of which agreement defendants deny that they are liable as endorsers in this action.

The petition was filed August 25th, 1858, and the writ served on defendants on the 26th of the same month. The answer of defendants was filed at the ensuing October term, on the 8th day of the month. At said term, December 10, 1858, defendants Carson and Springer moved for a continuance, and filed the affidavit of Carson.

It stated substantially that William P. Davis (one of the defendants) was a material witness for them; that no other witness was in attendance who could prove the same facts; that they could not safely go to trial without Davis, who was not absent by their consent, &c. that said Davis had the settlement and arrangement of the whole business out of which plaintiff's demand arose, and alone of said defendants had a personal knowledge of the facts connected with and material to the defence of this case; that the whole preparation of said defence has been entrusted to him (Carson) by his co-defendants; that said affiant caused a notice of the time and place of taking depositions in this case to be served on plaintiff, and that depositions taken in pursuance of said notice would have reached St. Louis in time for the trial of this cause; that it was necessary, as affiant believes, and indispensable to the proper taking of said depositions, that affiant should be personally present in order to elicit all the material facts from the witnesses; that affiant was fully prepared to be present, but was prevented by sickness of his wife and child, and that this sickness was the sole reason why said depositions were not taken in time for the trial.

The motion for continuance was overruled, to which the defendants excepted. On December 15, 1858, the plaintiff dismissed as to the defendant Davis, on whom there had been no service, and the case was tried by the court. The plaintiff proved the presentment of the note for payment, refusal of payment, the protest of it, and notice to defendants of nonpayment, and read the note in evidence.

The defendants proved that they endorsed the note sued on for the accommodation of the maker; that before the institution of this suit Davis, the maker of said note, came to St. Louis and executed to the plaintiff another note with three others as joint makers with himself, for the same consideration as the note sued on, which note thus executed was payable sixty days after date, no part of which is yet paid. The plaintiff in rebuttal introduced a witness who testified that the note sued on was left with him as agent of the plaintiff for collection or to obtain security; that Davis, before the institution of this suit, executed another note for the amount sued on with three other names besides his own as makers thereof, which was taken by plaintiff as collateral security; that there was no agreement to give time on the note sued on, nor any assurance given that the collection of that note should not be enforced without delay; that plaintiff retained the original note and took the second...