Hartman v. Redman

• Decision Date: 23 February 1886
• Citation: 21 Mo.App. 124
• Parties: J. C. HARTMAN ET AL., Respondents, v. L. H. REDMAN, Appellant.
• Court: Missouri Court of Appeals

21 Mo.App. 124

J. C. HARTMAN ET AL., Respondents,

v.L. H. REDMAN, Appellant.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1886.

APPEAL from the Ralls County Circuit Court, THEO. BRACE, Judge.

Reversed and remanded.

R. F. ROY and T. H. BACON, for the appellant: The consideration having all passed to the principal before its execution by the principal, and the note having been executed and delivered to the respondents by the principal as his sole and individual note, the appellant's subsequent signing of said note as surety at the respondents' request, and on their presentation of said note for said purpose, was a signing without consideration, was nudum pactum. McMahan v. Geiger, 73 Mo. 145. The principal's legal liability to pay his other debt to a stranger was not a liability to pay such other debt in preference to the note in suit, and when the principal, at the respondents' instance and request, did promise such preference and did make such preferred payment, a valid consideration arose supporting the respondents' promise to extend the time of payment of the note in suit. Whatever the principal did in excess of legal requirement was a sufficient consideration. Williams v. Jensen, 75 Mo. 681. The special agreement between the appellant and his principal for the payment of the respondent's note out of the proceeds of the crop free from the appellant's landlord's lien, formed a special collateral security for the payment of said note, and the respondents, without the appellant's knowledge or consent, wasted the collateral so as to wholly discharge the security. Ferguson v. Turner, 7 Mo. 497; Crump v. McMurtry, 8 Mo. 408, 413.

BRISTOW & LIGHTER, for the respondents: “The debt of a third person to payee is a sufficient consideration for promise of maker of the note.” Brainard v. Capelle, 31 Mo. 428. “To discharge the surety the creditor must do some act by which he deprives himself of the right of proceeding at law in the collection of the obligation.” Rucker v. Robinson, 38 Mo. 154; Nichols, Adm'r, v. Douglass, 8 Mo. 49; Hosea v. Rowley, 57 Mo. 357; German Savings Association v. Helmrich, 57 Mo. 100. “The principal requisite and that which is the essence of every consideration, is that it should create some benefit to the party promising, or some trouble, prejudice, or inconvenience to the party to whom the promise is made.” Stillwell v. Aaron, 69 Mo. 545; Story on Cont., sect. 548.

ROMBAUER, J., delivered the opinion of the court.

This is an action on a promissory note signed by the defendant and one Smith.

The answer contains four separate defences. The substance of the first two is to the effect, that the note was given for an antecedent debt of Smith to the plaintiffs, and was made and delivered to the plaintiffs by Smith as and for his individual note. That the defendant long after such delivery signed the note as surety for Smith and without any new consideration. The third defence relied on is that by an agreement between the plaintiffs and Smith, without the defendant's knowledge and consent, the payment of the note was extended, whereby the defendant, as surety, was discharged. The fourth defence states an agreement between the plaintiffs, Smith and the defendant, made subsequently to the execution of the note, to the effect, that the note should be paid with the proceeds of a crop of oats, on which the defendant had a landlord's lien; that for the purpose of enabling Smith to make such payment, the defendant waived his lien, whereby he claims a discharge.

The plaintiffs demurred to the entire answer, as constituting no defence. The court sustained the demurrer and the defendant, electing to...