Lawson v. Gudgel

• Decision Date: 28 February 1870
• Citation: 45 Mo. 480
• Parties: JAMES J. LAWSON AND AMI LAWSON, Plaintiffs in Error, v. EDWARD GUDGEL, Defendant in Error.
• Court: Missouri Supreme Court

45 Mo. 480

JAMES J. LAWSON AND AMI LAWSON, Plaintiffs in Error,

v.EDWARD GUDGEL, Defendant in Error.

Supreme Court of Missouri.

February Term, 1870.

Error to Fifth District Court.

Dixon, Collier & Broaddus, for plaintiffs in error, cited 2 Greene, Iowa, 553; 20 Wis. 98; 19 Wend. 409; 6 Johns. 37; 5 East, 294; 3 Monr. 303; 10 U. S. Dig. 7, § 7; 11 U. S. Dig. 7, § 2; 20 Cow. 559; 20 Johns. 77; 8 Johns. 389; 15 Johns. 247; 8 Cow. 78; 19 Johns. 295; 5 Hill, 450; 17 Johns. 169; 28 Ind. 97; 1 Ind. 310; 5 Black, 71; 4 Greene, 544; 27 Maine, 370; 26 Maine, 88; 2 Metc. 285; 9 Cush. 150; Chit. on Bills, 524; 15 Johns. 248; 1 Hill, 516.

Hall & Oliver, for defendant in error, cited Edw. on Bills and Prom. Notes, 2d ed., 546; Boyd v. Hitchcock, 20 N. Y. 76; Sheely v. Mandeville, etc., 6 Cranch, 253; Appleton v. Kennon, 19 Mo. 640; Sto. on Prom. Notes, § 404; St. John v. Purdy, 1 Sandf. 9; Willard v. German, 1 Sandf. 50; Southwick v. Sax, 9 Wend. 122; New York State Bank v. Fletcher, 5 Wend. 85-7; Arnold v. Camp, 12 Johns. 409; Frisby v. Larned, 21 Wend. 450; Cole v. Sackett, 1 Hill, 516.

BLISS, Judge, delivered the opinion of the court.

The plaintiffs brought suit upon a promissory note executed to them by defendant and one John T. Gudgel, deceased, and allege that the note is in the hands of defendant, but is unpaid. The defendant answers that he was surety upon the instrument for said John T. Gudgel; that it became the sole property of James J. Lawson, one of the payees, whose wife was one of the heirs of said John T. Gudgel; and that it was paid and satisfied in the following manner: the said heirs had, without administration, divided the estate of said John T. Gudgel among themselves, and, that they might not be compelled to pay back to an administrator the amount so divided, agreed to pay said note, and accordingly executed to said James J. Lawson their joint note for the full amount due upon the note in suit, less the proportion to be paid by the wife of said James J. Lawson, which joint note the said James J. Lawson received in full satisfaction of the note in suit, and directed his agent, who had it in possession, to deliver it up to defendant, which was done. The plaintiff denied these allegations, and a verdict was obtained and a judgment rendered for defendant, which was affirmed in the District Court. Upon the trial, the court gave a large number of instructions to the jury, embodying the same questions in different forms; but the points embodied in them were substantially as follows: The court held, first, that a receipt by the plaintiffs of a promissory note executed by the heirs of John T. Gudgel, unconditionally, and in full payment of the note in suit, and a delivery of the latter note, by order of the plaintiffs, to the defendant, as paid, was a payment and satisfaction of the same. Second, that the possession of the note by the maker was prima facie evidence of its payment. It seems to us there can be no doubt whatever as to the correctness of these positions. The plaintiffs make many objections to them, in their applications to the case, among which are, first, that the answer does not show a good accord and satisfaction, because the defendant was not a party to it. This is a strange objection when we consider that it does show that the defendant was but a surety upon the instrument, and that the adjustment was made, as it should have been made, by the heirs of the principal, who, by appropriating the property of the estate, were under obligation so far to provide for its debts. Second and third, the plaintiffs object to the instructions because there was no consideration for securing the new note, and it was for a less amount than the one in suit. I do not know that I fully understand what the plaintiffs meant by consideration; but if they mean that the new note was without consideration, and therefore a nude pact, they are clearly in error; for, as we have seen, its makers performed but a plain duty in providing for the debts of the ancestor out of funds received from him; and if the creditor chose to waive the ordinary process to...