Goodwin v. Jackson

• Decision Date: 29 March 1922
• Citation: 97 Conn. 358,116 A. 617
• Court: Connecticut Supreme Court
• Parties: GOODWIN v. JACKSON.

116 A. 617

97 Conn. 358

GOODWIN v. JACKSON.

Supreme Court of Errors of Connecticut.

March 29, 1922

Appeal from Court of Common Pleas, New Haven County; Earnest C Simpson, Judge.

Action by Horace H. Goodwin against J. Frederick Jackson. Judgment for defendant, and plaintiff appeals. No error.

On August 28, 1914, George Jackson gave the following note:

" New Haven, Connecticut, August 28, 1914.

" For value received, I, George Jackson, promise to pay to the order of Fanny Bender five hundred dollars, payable as follows, to wit: In successive semiannual payments of fifty dollars each, commencing with the first payment six months from the date hereof, and continually semiannually thereafter until said principal sum is fully paid, with interest on the principal unpaid at the rate of six (6) per cent. per annum payable semiannually, together with all taxes assessed upon said sum against said payee or the holder of this note.

" Provided, however, that if any of the payments of interest or principal shall remain in arrear and unpaid for the space of fifteen (15) days after the same shall fall due as aforesaid the principal of this note shall immediately thereafter, at the option of the holder thereof, become due and payable on demand.

" [Signed] George Jackson."

Before delivery the defendant executed the following guaranty upon this note:

" For value received I hereby, for myself, my heirs executors and administrators, guarantee the payment of the within note principal and interest until fully paid according to its tenor, without requiring any notice of nonpayment or demand for payment, whereby to charge me or my heirs executors, or administrators therefor.

" Dated at New Haven, Conn., August 28, 1914. J Frederick Jackson."

To secure this note, George Jackson, maker, gave the payee, Fanny Bender, a third mortgage on property on Lenox street, New Haven. Fanny Bender, on December 14, 1914, indorsed this note to the plaintiff, and assigned to him the third mortgage to secure the note. There were then three mortgages on the property, a first mortgage of $3,000, a second mortgage of $825, and the plaintiff's mortgage of $500. The mortgaged property was worth about $4,500. George Jackson, mortgagor, conveyed the equity to one Larsen. In June, 1915, Katie Freedman, the assignee of the second mortgagee, brought foreclosure, making Larsen, Goodwin, owner of the third mortgage by assignment, George Jackson, and the defendant parties defendant. On October 5, 1915, title became absolute in Freedman, and she thereupon conveyed to Larsen and he gave her a new second mortgage for $625, having already paid $200 on the mortgage being foreclosed; and, the present plaintiff not having redeemed, Larsen, pursuant to agreement with him, gave him a new note for $500 and a new third mortgage to secure the note.

This note was identical in form and terms with the original Jackson note to Fanny Bender, except that it was dated October 5, 1915, and the times for payment ran from that date. This note and mortgage were accepted by the plaintiff as a substitute security for the original George Jackson mortgage and plaintiff did not surrender the original Jackson note which contained the guaranty sued upon. Defendant, though a party defendant, had no knowledge of the arrangement between the plaintiff and Larsen as to the third mortgage until after it had been executed and delivered. Thereupon Larsen conveyed his equity in the mortgaged property to one Sheronas, and soon after Freedman, new second mortgagee, brought a new foreclosure of the new second mortgage, making the plaintiff, new third mortgagee, and Sheronas both defendants, and while this suit was pending the plaintiff released the third or Larsen mortgage to Sheronas for $290. Defendant had no knowledge of this transaction until after its completion, when plaintiff notified defendant that he would credit the $290 on the original Jackson note on which defendant was guarantor, and demanded of the defendant payment of the balance of the original note. The plaintiff offered no evidence of the value of the property mortgaged, but it appeared that the property was worth about $4,500, which was substantially in excess of the face value of the three mortgages, including the plaintiff's, which he had released for $290.

Kenneth Wynne, of New Haven, for appellant.

Thomas R. Fitz Simmons, of New Haven, for appellee.

GAGER J.

The defendant in writing unconditionally guaranteed the payment of an installment note for $500 secured by mortgage given by George Jackson to Fanny Bender. The plaintiff, by assignment became the owner of the note so guaranteed and of the mortgage. The defendant claims that, as the result of certain transactions of the plaintiff, the mortgage security given by the maker of the guaranteed note, the guarantor has been released from all liability on his guaranty. The trial court held that the defendant was so released, and the appeal arises on the question whether any of the plaintiff's actions with respect to this mortgage deed operated to release the defendant from his...