Huber Mfg. Co. v. Silvers

• Decision Date: 05 January 1910
• Docket Number: No. 15,883.,15,883.
• Citation: 85 Neb. 760,124 N.W. 148
• Parties: HUBER MFG. CO. v. SILVERS ET AL.
• Court: Nebraska Supreme Court

85 Neb. 760

124 N.W. 148

HUBER MFG. CO.

v.SILVERS ET AL.

No. 15,883.

Supreme Court of Nebraska.

Jan. 5, 1910.

Syllabus by the Court.

The unconditional release of one of several makers of a joint and several promissory note, without the consent of the other makers thereof, operates as a release of all.

Appeal from District Court, Lancaster County; Frost, Judge.

Action by the Huber Manufacturing Company against John C. Silvers and others. Judgment for defendants. Plaintiff appeals. Affirmed.Geo. A. Adams, for appellant.

Norval Bros., J. J. Thomas, and Edwin Vail, for appellees.

FAWCETT, J.

This action was commenced in the district court of Lancaster county upon five promissory notes, dated June 10, 1903, signed jointly by all three defendants. The defendants each filed a separate answer. Defendant Silvers alleged that “before this action was brought, and after the giving of the several promissory notes mentioned and described in said petition, to wit, on or about August 17, 1903, the said plaintiff for a good and valuable consideration, to wit, the purchase by this answering defendant from the said plaintiff on or about said date one 16 horse power Huber traction engine, and one Huber steam thresher, and other property, released and discharged this answering defendant from the claims and cause of action set forth in its petition filed herein, and thereby this answering defendant was discharged by said plaintiff from the payment of the debts, or notes mentioned in said petition.” Further, “that the several promissory notes mentioned and described in the petition were given by the defendants herein for the purchase by these defendants from said plaintiff of one of the defendant's rigs, to wit, one Huber steam thresher separator, and this defendant further avers that the following is a copy of the said release hereinbefore mentioned and described, to wit: ‘The undersigned of this order is to be released without recourse hereafter on the company's rig signed by Silvers, Britt and McKenney upon the approval of this order.’ ” Defendant further averred: That he gave plaintiff on or about August 17, 1903, a written order for the threshing outfit first above set out, and that thereafter the said order was accepted and approved by plaintiff under and in pursuance of said order given by defendant to the company. That plaintiff furnished and delivered to him the threshing outfit above mentioned. “That in pursuance of the said stipulation in said written order above set forth, and the approval thereof by said plaintiff as above set forth, this answering defendant is released and discharged from the claims or debts sued for in the petition filed herein.” The defendants Britt and McKenney in their separate answers each alleged: That the notes set out in plaintiff's petition were executed by the three defendants as joint makers, and that the consideration therefor was the joint obligation of all the defendants; “that on or about August 17, 1903, the plaintiff for a good and valuable consideration, and without the knowledge and acquiescence, permission, or consent of this answering defendant, released and discharged the codefendant, John C. Silvers, from all liability on the notes set forth in plaintiff's petition and the consideration for which the same was given; that said release was absolute and unconditional; and that by reason thereof this answering defendant has been and is released and discharged from all liability upon said notes.” The reply alleged: That the notes were joint and several notes and were executed by the defendants to plaintiff for a threshing machine outfit; that on or about August 17, 1903, defendant Silvers came to plaintiff and represented to plaintiff that he had sold his interest in said threshing outfit to his codefendants, Britt and McKenney; that they had assumed and agreed to pay the notes and debt sued upon, and at that time offered to purchase, or wanted to purchase, of plaintiff, another threshing outfit; that plaintiff, relying upon what he said, and believing his statements to be true, and from his statements believing that he had sold his interest in the outfit for which the notes in suit were given, and believing that the defendants, Britt and...