Kincaid v. Yates

• Decision Date: 31 May 1876
• Citation: 63 Mo. 45
• Parties: JOHN G. KINCAID, Plaintiff in Error, v. WILLIAM F. YATES, Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 45

JOHN G. KINCAID, Plaintiff in Error,

v.WILLIAM F. YATES, Defendant in Error.

Supreme Court of Missouri.

May Term, 1876.

Error to Ray Circuit Court.

D. P. Whitmer, with J. W. Shotwell, for Plaintiff in Error, cited: Dodd vs. Winn, 27 Mo., 501; Dunn vs. Wade, 23 Mo., 207; State Sav. Ass'n of St. Louis vs. Kellogg, 52 Mo., 583;Heralson vs. Mason, 53 Mo., 211; State to use, etc. vs. Patton, 42 Mo. 530; State to use, etc. vs. Matson, 38 Mo., 489; Wagn. Stat., ch. 132, §§ 5, 6, 7, 8.

C. F. Garner, for Defendant in Error.

The creditor has no right, and it is against the faith of his contract, to give time to the principal, even though manifestly for the benefit of the surety, without the consent of the surety. (Fell's Law Guar. & Sur., p. 213; Lynch vs. Reynolds, 16 John., 61; Robertson vs. Vogle, 1 Dal., 252; 2 Am. Lead. Cas., 272-4, 275.)

Plaintiff shows no cause of action. It is manifest on the face of the petition that there was collusion and fraud between the original payee in the note and the plaintiff in this suit, by which defendant was prejudiced.

HOUGH, Judge, delivered the opinion of the court.

This was an action by the plaintiff, as surety, against the defendant, as his co-surety, for contribution.

The petition states the following facts: On the 12th day of January, 1861, Joseph D. Nelson executed and delivered to one Caroline Sinclair, a promissory note for the sum of two thousand eight hundred and eighty-one dollars and forty-five cents, with the plaintiff and the defendant as his sureties. Some time after the maturity of said note, Caroline Sinclair, who then resided in Kentucky, requested Nelson, who, with the sureties, lived in this State, to renew said note. Nelson sent her a note in renewal, signed by himself, and having also the names of the plaintiff and the defendant signed thereto, which Mrs. Sinclair thought at the time were their genuine signatures, and so believing, returned to Nelson the original note. Neither Yates nor Kincaid had ever signed, or authorized any one to sign for them, the second note. Nelson died insolvent in possession of the original note, which afterwards came to the possession of the defendant, as his administrator. Neither Nelson nor the defendant ever paid any part of the debt to Mrs. Sinclair. Upon discovering that the signatures of Yates and Kincaid were not genuine, Mrs. Sinclair, in 1868, sued Yates, then a resident of Kentucky, upon his liability as surety on the first note, for the full amount thereof and interest, and he, as he alleges, having no legal or equitable defense thereto, “compromised, settled, and fully discharged said note.”

Plaintiff prayed judgment against the defendant for half the amount of the first note and interest. The amount paid by plaintiff is not stated, and the petition is not as definite in other respects as it should be.

The question of the sufficiency of the petition was raised, after issue joined, by an objection at the trial to the introduction of any evidence under it. The objection was sustained, final judgment was rendered against the...