Industrial Loan & Investment Co., Inc. v. Miller

• Decision Date: 09 May 1932
• Docket Number: 30001
• Parties: INDUSTRIAL LOAN & INVESTMENT CO., INC., v. MILLER
• Court: Mississippi Supreme Court

141 So. 587

163 Miss. 288

INDUSTRIAL LOAN & INVESTMENT CO., INC., v. MILLER

No. 30001

Supreme Court of Mississippi, Division B

May 9, 1932

Suggestion Of Error Overruled, June 6, 1932.

(Division B.)

1 TRIAL.

Whether parol evidence varied, terms of written instrument will not be considered where such evidence went in without objection.

2. BILLS AND NOTES.

Giving Instruction that, if, for valuable consideration, payee extended time of payment of note, indorser was released, held error under evidence.

3. PRINCIPAL AND SURETY. Agreement to extend time of payment of note, to release surety, must tie positive and binding and supported by new and valuable consideration.

Under this rule, mere forbearance or indulgence on part of holder of note will not release surety.

4 TRIAL.

Where evidence was insufficient to sustain hypothesis set out In instruction, giving of instruction was error, though evidence was not objected to.

HON. B L. CORBAN, Judge.

APPEAL from circuit court of Adams county, HON. R. L. CORBAN, Judge.

Action by the Industrial Loan & Investment Company, Inc., against Louis C. Miller, Jr., and others. From a judgment for named defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Brandon, & Brandon, of Natchez, for appellant.

Mere forbearance or indulgence will not release the surety, but agreement to extend time of payment which will release the surety must be a positive binding agreement, supported by a new and valuable consideration; and in order to effect his release thereby the burden is on the surety to show a binding agreement based upon some new and valuable consideration which is sufficient to preclude the creditor from enforcing the instrument during the period covered by the extension.

Graham v. Pepper, 132 Miss. 612, 97 So. 180, 30 A.L.R. 1278.

An instruction is erroneous and should be refused where there is no evidence on the propositions stated therein.

New Orleans & Great Northern R. R. v. Frazier, 158 Miss. 407, 130 So. 493; Gooden v. Gage, 151 Miss. 351, 117 So. 881; Interstate Life & Accident Co. v. Cooley, 150 Miss. 502, 117 So. 267; Robinson v. Spears, 21 So. 554; Collins v. Union Farmers Bank, 110 Miss. 506, 70 So. 581; McLeod Lbr. Co. v. Anderson Mercantile Co., 105 Miss. 498, 62 So. 274; Bank of Newton v. Simmons, 96 Miss. 17, 49 So. 616; Davis v. Searcy, 79 Miss. 292, 30 So. 823.

Whittington & Brown, of Natchez, for appellee.

There is ample testimony in the record to support the one instruction given by the court to the defendant; even though this evidence might not have been altogether proper evidence, yet inasmuch as it was admitted without objection it is, as a matter of law, entitled to as much weight as if it had been proper.

Birmingham Railway & Electric Co. v. Wildman, 24 So. 548.

Argued orally by G. H. Brandon, for appellant, and by L. A. Whittington, for appellee.

OPINION

Anderson, J.

Appellant brought this action in the circuit court of Adams county against Gordon K. Meschutt, Lotta H. Meschutt, Mrs. Ellen R. S. Meschutt, and appellee upon a promissory note signed by all the defendants and R. L. Millette, by the terms of which the defendants obligated themselves to pay to appellant the sum of five hundred forty-three dollars and forty-eight cents in ten installments of fifty-four dollars and thirty-five cents each, on the first day of each month thereafter, with interest at six per cent. per annum after maturity. There was a verdict and judgment against all of the defendants except appellee. There was a verdict and judgment in his favor; from that judgment appellant prosecutes this appeal.

Appellee pleaded the general issue and gave notice thereunder that he would prove that, although his name appeared on the note as maker, in truth and in fact he executed the same only as indorser and was therefore secondarily and not primarily liable thereon; that default was made in the first installment of the note due on August 1, 1929, and on August 3, 1929, before that installment was paid, for a valuable consideration, appellant granted to Gordon K. Meschutt and the other makers of the note an extension of the time of payment for a definite period without the knowledge or consent of appellee, and therefore, appellee, being a mere surety on the note, was released from liability thereon; and, furthermore, that thirty-three days after the execution of the note appellant took additional security for the loan which resulted in releasing appellee from liability. Appellant joined issue on the matter set up in the notice of the general issue.

There was little, if any, real conflict in the material evidence in the case. Briefly stated, this is the case. On July 1, 1929 the Meschutts, R. L. Millette, and appellee executed and delivered to appellant the note sued on. The consideration for the note was a loan by the appellant to Gordon K. Meschutt. No part of the consideration in the note was received by appellee. The note contained this stipulation on its face: "The undersigned are all principals and are jointly and severally liable for the full amount of this obligation. The makers, principals and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note." R. L. Millette, one of the makers of the note, was appellant's manager. The loan was negotiated through him. At the time of the execution of the note, the Meschutts assigned to R. L. Millette, to secure him against loss as one of the makers of the note, certain collaterals, and about a month after the execution of the note gave him a chattel mortgage for the same purpose. No consideration passed from appellant for the transfer of the collaterals and the execution of the chattel mortgage. ...