Huey v. Pinney

• Decision Date: 01 January 1861
• Citation: 5 Minn. 246
• Parties: GEORGE E. HUEY vs. OVID PINNEY.
• Court: Minnesota Supreme Court

Page 246

5 Minn. 246

GEORGE E. HUEY vs. OVID PINNEY.

Supreme Court of Minnesota.

Appeal from judgment of district court, Hennepin County.

The respondent brought the action, and had judgment below.

Points and authorities for appellant: —

1. The order denying a new trial was erroneous, because the court below erred in excluding any evidence on the part of the defendant, and also in granting plaintiff's motion for judgment upon the pleadings. The answer disclosed a perfect defense to the action. The rule or criterion, says Harris, J., in Schroeppell v. Shaw, 3 N. Y. 462, by which to determine in any and every case whether a creditor has done, or omitted to do, any act which will have the effect to exonerate the surety, is stated with perfect accuracy by judge Story, as follows: "If a creditor does any act injurious to the surety, or inconsistent with his rights, or if he omits to do any act, when required by the surety, which his duty enjoins him to do, and the omission proves injurious to the surety, in all such cases the latter will be discharged, and he may set up such conduct as a defense to any suit brought against him, if not at law, at all events, in equity." Story Eq. Jur. § 325. In this case, as Woodman was solvent, it was plaintiff's duty to have enforced prompt payment against him when requested, because, — First, the equitable obligation arising out of his relation to Huey, as surety, required this. Such was the essence of the contract, per Spencer, C. J., in King v. Baldwin, 17 Johns. 384, and per Sutherland, J., in delivering the opinion of the court in Ruggles v. Holden, 3 Wend. 216. Second, this was the express condition upon which Huey became surety — vide answer. The neglect to prosecute and collect of Woodman while solvent, and the admitted consequent loss and injury to the defendant, discharged the surety. Pain v. Packard, 13 Johns. 174; King v. Baldwin, 17 Johns. 385, and cases there cited; Huffman v. Hulbert, 13 Wend. 377; 3 Wend. 216, cited above; 5 Hammond, 207; 3 N. Y. 462; 9 Porter, 334; 8 Serg. & R. 110; 10 Wend. 162; 4 Hill, 650; 3 Minn. [18]; 6 Miss. 46; 3 Barr. 264, 404. The extension of time also discharged the surety. Story Eq. § 326, and cases cited in the note; 7 Wend. 289; 7 Hill, 250; 10 Paige Ch. 11, et seq.; 3 Denio, 378, 512; 4 N. Y. 315. The objection raised by the court below, that it did not appear from the face of the note that Huey signed as surety, and that the fact could not be proved by parol, was untenable in law. 4 Hill, 650; 4 N. Y. 315, and cases there cited by respondent's counsel; 6 N. Y. 44; 1 Minn. [369]; 9 Met. 511-517; 2 Minn. [145], [146].

Points and authorities for respondent: —

The motion for a new trial in this action was properly denied, because the answer is insufficient. First, because the allegation in the answer that the plaintiff neglected to sue the principal defendant, Woodman, upon the request of defendant Huey, who is his surety, constitutes no defense to this action, because the said request is not alleged to have been made in writing, nor to have been accompanied with a tender or offer of a bond of indemnity or any indemnity whatever to plaintiff, to insure him against the hazards of a fruitless suit, and for the payment of the costs and disbursements incurred therein. King v. Baldwin, 2 Johns. Ch. 554; Hayes v. Ward, 4 Johns. Ch. 123, 131, 132; Beardsley v. Warner, 6 Wend. 610; 8 Wend. 194; Schroeppell v. Shaw, 3 N. Y. 446; Bull v. Allen, 19 Conn. 101; Taylor v. Beck, 13 Ill. 376; Stump v. Rogers, 1 Ohio, 533; Ohio Life Ins. Co. v. McCague, 18 Ohio, 54; Taft v. Gifford, 13 Met. 187; Leavitt v. Savage, 16 Me. 72; Bellows v. Lovell, 5 Pick. 307; Crane v. Newell, 2 Pick. 614, (note 1); Chitty on Cont. [468]; 1 Story Eq. Jur. §§ 326, 327; Wright v. Simpson, 6 Ves. Jr. 734; United States v. Kirkpatrick, 9 Wheat. 720; M'Lemore v. Powell, 12 Wheat. 554; Joslyn v. Smith, 13 Vt. 353; Bishop v. Day, id. 81; 2 Story on Cont. §§ 881-887; Willard Eq. 108; Calvert v. Gordon, 3 Man. & R. 124; 2 Barn. & Cress. 497; Loveland v. Knight, 3 Car. & P. 106; In the Matter of Samuel H. Babcock, 3 Story, 398; Alcock v. Hill, 4 Leigh, &c. 623; Johnston v. Thompson, 4 Watts, 446; Reynolds v. Ward, 5 Wend. 501; Locke v. U. States, 3 Mason, 446; Pickett v. Land, 2 Bail. 608; Moore v. Broussard, 10 Martin (La.) 144; Davis v. Huggins, 3 N. H. 231; Frye v. Barker, 4 Pick. 382; Oxford Bank v. Lewis, 8 Pick. 458; Blackstone Bank v. Hill, 10 Pick. 129; Fullam v. Valentine, 11 Pick. 156; Buchanan v. Bordley, 4 Har. & McH. 41; Hunt v. U. S. 1 Gall. 32; Cope v. Smith, 8 Serg. & R. 110; Com. v. Wolbert, 6 Binn. 292; Fulton v. Matthews, 15 Johns. 433; Powell v. Waters, 17 Johns. 176; 4 McC. 458; Braman v. Howe, 1 Blackf. 393; Strafford Bank v. Crosby, 8 Me. 191; Kennebec Bank v. Tuckerman, 5 Me. 130; Clagett v. Salmon, 5 Gill & J. 314; Stout v. Ashton, 5 Mon. (Ky.) 252; Norris v. Crummey, 2 Rand. (Va.) 323; Freeman's Bank v. Rollins, 13 Me. 202; Sibley v. McAllaster, 8 N. H. 389; Hubbell v. Carpenter, 5 N. Y. 171; Sprigg v. Bank, &c., 14 Pet. 204; Huntress v. Patten, 20 Me. 28; Bangs v. Strong, 4 N. Y. 315; Agricultural Bank v. Bishop, 6 Gray, 319; Creath's Admr. v. Sims, 5 How. U. S. 192; Chitty on Bills [409]. And see particularly 2 Am. Lead. Cas. [4th ed.], pages 363 and following, where the whole subject is ably discussed and fully exhausted. Second, because it affirmatively appears by said answer that this defendant (Huey) had full knowledge of the situation and affairs of the said Woodman, and was himself guilty of negligence in not paying the note, and then collecting it of said Woodman. 1 Parsons Cont. and cases cited. And because it does not appear by said answer that defendant Huey had not been secured against all risk by said Woodman. 1 Parsons Cont. 512. Because, being an answer in the nature of the old plea of confession and avoidance, it must be "certain to every intent in particular." Third, because the answer merely alleges that there was an extension of time by the plaintiff to said principal defendant Woodman by an agreement between them, but does not set forth the existence and nature of the consideration with sufficient precision to enable the court to judge of its sufficiency. 2 Am. Lead. Cas. (4th ed.) 415, 416; Marshall v. Aiken, 25 Vt. 328. Fourth, because an answer setting up an extension of time to the principal, being in the nature of the old plea of confession and avoidance, must definitely and precisely fix the time of the extension, which the answer in this action does not do. 1 Parsons Cont. 513, note y; Miller v. Stem, 2 Pa. St. 286; Parnell v. Price, 3 Rich. 121; Wadlington v. Gary, 7 Sme. & Mar. 522; Gardner v. Watson, 13 Ill. 347; Waters v. Simpson, 7 Ill. 570; People v. McHatton, 2 Ill. 566; McGee v. Metcalf, 12 Sme. & Mar. 535.

F. R. E. Cornell, for appellant.

L. M. Stewart, for respondent.

FLANDRAU, J.

The complaint in this action is upon two promissory notes, dated July 9th, 1857; one payable on the twenty-seventh day of October, and the other on the twenty-seventh day of September, then next. The notes are made by the defendants Woodman and Huey, to the order of the defendant Murphy, and indorsed by him. The complaint alleges, in regard to both the notes, that Huey signed them as surety.

The defendant Huey answers and admits that he signed the notes as surety, as alleged in the complaint, but avers that he so signed them upon the express condition, known to the plaintiff, that the notes should run but a short time only, and that the plaintiff should proceed promptly to enforce the collection of the said notes when due, against the principal Woodman; and that shortly after the notes fell due the defendant Huey called upon the plaintiff personally, and notified and ordered him to proceed and collect the said notes without delay, and that he told the plaintiff that the notes could be collected at that time of the principal Woodman, but the plaintiff refused so to do, and at the request of the defendant Woodman, without the consent of Huey, after the maturity of the notes, extended the time of payment thereon to Woodman, for a valuable and binding consideration from Woodman. The defendant Huey also charges that, at the time he requested the plaintiff to proceed against Woodman, he was solvent, and the notes were collectable against him by due process of law, and that he has since become insolvent, &c. The reply puts in issue the allegation of the answer as to the extension of the time of payment on the notes to Woodman.

On the trial, the plaintiff moved for judgment on the pleadings, and the court granted the motion. There are two defenses attempted in the answer: First, that the defendant Huey, as surety, was discharged from his obligation by reason of the refusal of the plaintiff to prosecute the principal debtor when requested to do so, he being solvent at the time of the request, and having subsequently become insolvent, thereby cutting off the indemnity which the surety would otherwise have had. Second, that by granting the principal an extension of time upon the notes after they became due, he varied the contract of the surety, and thus worked his discharge.

The plaintiff's counsel, in a very able argument evincing a thorough knowledge of the subject, and containing a most elaborate review of the authorities, insists that the first defense is insufficient in not alleging, in connection with the request to prosecute the principal debtor, that the surety tendered the plaintiff full indemnity against any loss or expense he might incur by a failure to collect of the principal; and also in not alleging that the principal was solvent within the jurisdiction of the courts of this state; also, that the request to sue should have been in writing.

I will examine these several objections and test their validity. It is a settled and sound principle that the relation of principal and surety involves the utmost good faith and...