ERROR
from the district court of Douglas county. Tried below before
BLAIR, J. Affirmed.
AFFIRMED.
Horton & Blackburn, for plaintiff in error:
The
indebtedness created under the guaranty was paid.
(Phoenix Ins. Co. v. Church, 81 N.Y. 220;
Slaymaker v. Gundacker, 10 S. & R. [Pa.] 75;
Bank of the United States v. Daniel, 12 Pet. [U. S.]
34; Cumber v. Wane, 1 Smith, Leading Cas. 633;
Young v. Hibbs, 5 Neb. 436; Fisher v. Marvin, 47
Barb. [N. Y.] 159.)
References
to question as to extension: Combe v. Woolf, 8 Bing.
[Eng.] 156; Samuell v. Howarth, 3 Mer. [Eng.]
272; Chace v. Brooks, 5 Cush. [Mass.] 43; Tootle
v. Elgutter, 14 Neb. 158; Manning v. Alger, 52 N.W. 542
[Ia.].
References
to question as to laches: Talbot v. Gay, 18 Pick.
[Mass.] 534; Newton Wagon Co. v. Diers, 10 Neb. 284;
Oxford Bank v. Haynes, 8 Pick. [Mass.] 423.
Winfield
S. Strawn, contra.
References
to questions as to construction of guaranty and as to
liability of guarantor: Watts v. Gantt, 42 Neb. 869;
Tolerton v. McClure, 45 Neb. 368; Lihs v
Lihs, 44 Neb. 143; Monroe v. Reid, 46 Neb. 316;
Merle v. Wells, 2 Camp. [Eng.] 413; Smith v
Dann, 6 Hill [N. Y.] 543; Union Bank v. Coster,
3 N.Y. 203; Lawrence v. McCalmont, 2 How. [U. S.]
426; Lafargue v. Harrison, 70 Cal. 385; Mason v
Pritchard, 12 East [Eng.] 227; Russell v. Wiggin, 2
Story [U. S.] 213; Drummond v. Prestman, 12
Wheat. [U. S.] 518; Davis v. Wells, 104 U.S. 159;
Merchants Nat. Bank v. Hall, 18 Hun [N. Y.] 180;
White's Bank v. Myles, 73 N.Y. 340; Bent v.
Hartshorn, 1 Met. [Mass.] 24; Louisville Mfg. Co. v.
Welch, 10 How. [U. S.] 461; Palmer v. Rice, 36
Neb. 844; Wilcox v. Draper, 12 Neb. 138;
Lonsdale v. Lafayette Bank, 18 O. 142;
Klosterman v. Olcott, 25 Neb. 382; Douglass v.
Howland, 24 Wend. [N. Y.] 35; Case v. Howard, 41 Ia.
479.
HARRISON, C. J.
It
appears that Charles A. Harvey, who was engaged in business
in the city of Omaha, desired to arrange with the bank
defendant in error herein, to make him loans of money to be
used in the business at such times and in sums necessary to
best forward his plans, efforts, and hopes in the enterprise.
Turlington W. Harvey, the father of Charles A. Harvey, to
help his son in his business venture and to aid him in
obtaining accommodations in money matters of the bank,
executed and delivered to it the following:
"For
value received, I hereby guaranty to the First National Bank
of Omaha, for one year from this date, the payment of any
loan or discount by them to Charles A. Harvey, to the amount
of seven thousand dollars ($ 7,000).
"Sept.
18, 1889.
(Signed)
T.
W. HARVEY."
And on
September 18, 1889, the bank loaned to the son $ 1,700, which
transaction was evidenced by his note of that date in favor
of the bank and due in ninety days. October 22, 1889, another
loan was effected, evidenced by promissory note of the
borrower to the bank as payee and due in ninety days from its
date.
It was
pleaded in the petition, relative to these loans and the
notes to which we have just referred, as follows: "The
two said sums of money, loaned as aforesaid and under the
said guaranty, were never paid, but as the evidence of such
loans of said sums, and for no other purpose, the said
Charles A. Harvey made to the plaintiff his individual notes
for each of the said sums, which said evidences of the said
loans were from time to time replaced by other notes of the
said Charles A. Harvey only, the last thereof, for the said
loan of $ 1,700, bearing date of October 5, 1891; and the
last thereof, for the said loan of $ 2,500, bearing date of
November 4, 1891, at which time there was included the said
loan of $ 2,500 the further sum of $ 200, also
loaned to the said Charles A. Harvey, in consideration of, in
reliance on, and within the time limited by the said written
guaranty, making the last evidence of said loan a note in the
sum of $ 2,700." There were further declarations in
regard to a second guaranty and certain transactions
thereunder, but there is no controversy here of and
concerning it or them, and they will receive no further
notice.
In the
answer it was admitted that the guaranty was executed and
delivered, the loans made, and the notes given, and it was
stated:
"Said
defendant further answering states that at the maturity of
said above described note for $ 1,700, to-wit, December 20,
1889, said Charles A. Harvey gave to said plaintiff his
personal check drawn on said plaintiff for said amount due,
and that said plaintiff on said date discounted for said
Charles A. Harvey one promissory note for $ 1,700, said
Charles A. Harvey paying the interest on said note in
advance, and that said plaintiff placed the amount of said
note to the credit of said Charles A. Harvey; that at the
maturity of said above described notes for $ 1,000 and $
1,500 respectively, to-wit, January 25, 1890, said Charles A.
Harvey gave to said plaintiff his personal checks drawn on
said plaintiff for said amounts due, and that said plaintiff
on said date discounted for said Charles A. Harvey one
certain promissory note for $ 2,500, said Charles A. Harvey
paying the interest on said note in advance, and that said
plaintiff placed the amount of said note to the credit of
said Charles A. Harvey. Said defendant further states that
the delivery of said checks and the discount of said last
mentioned notes on December 20, 1889, and January 25, 1890,
respectively, were by said Charles A. Harvey given and by
said plaintiff received in payment of said loans described in
paragraphs three and four of this answer."
"(6.)
Said defendant further answering admits the execution and
delivery of said note of $ 1,700, bearing date October 5,
1891, and said note of $ 2,700, bearing date of
November 4, 1891, and states that both of said notes were by
their terms made payable in ninety days from their respective
dates and were given and received in payment of any and all
loans then due and remaining unpaid made by said plaintiff to
said Charles A. Harvey. Said defendant further states that in
consideration of the execution and delivery of said notes all
evidences of indebtedness for all loans then due were by said
plaintiff surrendered and delivered up to said Charles A.
Harvey. Said defendant further states that said note for $
2,700 was by said Charles A. Harvey given and by said
plaintiff received in payment of a note for the sum of $
2,500 dated August 3, 1891, and a loan made by said plaintiff
to said Charles A. Harvey after the expiration of said
guaranty. Said defendant further states that said $ 2,700
note included, also, three months' interest in advance
from said November 4, 1891, on said sums included in said
note. Said defendant further states that in consideration of
said plaintiff's extending the time of payment of the
amounts included in said last mentioned notes for $ 1,700 and
$ 2,700, respectively, for ninety days from their respective
dates said
Charles A. Harvey executed and delivered said notes, and also
paid to said plaintiff three months' interest in advance
on said note for $ 1,700 and included interest in advance, as
aforesaid, on said note for $ 2,700.
"(7.)
Said defendant further answering states that after the
maturity of said notes of $ 1,700 and $ 2,700, respectively,
said plaintiff, by the consideration of the court, duly
recovered judgment thereon against said Charles A. Harvey.
"(8.)
Said defendant further answering admits that the notes given
for any loans made during the continuance of said guaranty
were from time to time replaced by other notes, and states
that when each new note was given the old one was surrendered
and delivered up to said Charles A. Harvey and the payment of
the amount represented by said new note was extended for a
definite period in consideration of payments
made said plaintiff by said Charles A. Harvey and the
execution and delivery of said new notes. Said defendant
further states that when each of said notes became due said
Charles A. Harvey gave to said plaintiff for the amount of
such note his personal check drawn on said plaintiff, and
also signed a new note, which was discounted by said
plaintiff and the amount thereof placed to the credit of said
Charles A. Harvey by said plaintiff.
"(9.)
Said defendant further states that all of the said extensions
and final extensions of the payment of said sums of $ 1,700
and $ 2,700 ninety days from October 5, 1891, and November 4,
1891, respectively, were made by said plaintiff for a
valuable consideration moving from said Charles A. Harvey to
said plaintiff and without the knowledge or consent of said
defendant.
"(10.)
Further answering said defendant states that the first
knowledge he had that any loans made by said plaintiff to
said Charles A. Harvey had not been paid at their maturity
was some time subsequent to February 1, 1892, when he
received notice by letter from said plaintiff. Said defendant
further states that during the continuance of said guaranty,
and for more than one year from its expiration, said Charles
A. Harvey was solvent, was a resident of the city of Omaha,
said county, and had property in said county subject to
execution; that when said defendant first received notice of
the non-payment of certain loans made by said plaintiff to
said Charles A. Harvey said Charles A. Harvey was insolvent
and had no property whatever subject to execution."
The
reply, to the extent we need notice it, was as follows:
"Alleges
that upon the failure of said Charles A. Harvey to pay the
said sums in the petition mentioned, loaned to him under
defendant's said express guaranty, plaintiff informed
defendant of...
