Leabo v. Goode

• Decision Date: 31 October 1877
• Citation: 67 Mo. 126
• Parties: LEABO v. GOODE et al., Appellants.
• Court: Missouri Supreme Court

67 Mo. 126

LEABO

v.GOODE et al., Appellants.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Moniteau Court of Common Pleas.--HON. GEO. W. MILLER, Judge.

Owens & Wood for appellants.

1. The affidavit for continuance showed sufficient cause. 2. The instruction given at the instance of respondent was clearly erroneous, because it was decisive of the case, and excluded entirely from the consideration of the jury the questions raised by the evidence of appellant. Clark v. Hammerle, 27 Mo. 55; Sigerson v. Pomeroy, 13 Mo. 620; Mead v. Brotherton, 30 Mo. 201; Rapp v. Vogel, 45 Mo. 524. 3. The instructions asked by appellants should have been given. Moore v. Lackman, 52 Mo. 323; Powell v. Charless, 34 Mo. 485. 4. The taking of the individual notes of partners or joint debtors, will discharge the others, when so agreed. Maxwell v. Day, 14 Am. Law Reg. 59; Ib., 45 Ind. 509.

Draffen & Williams and Baird for respondent.

1. The application for a continuance was properly overruled. Frederick v. Rice, 46 Mo. 24; Farmers and Drovers Bank v. Williamson, 61 Mo. 259. 2. There was no evidence whatever that the different renewals of the note were intended as payment of the same and in satisfaction thereof. Appleton v. Kennon, 19 Mo. 637; Howard v. Jones, 33 Mo. 583; McMurray v. Taylor, 30 Mo. 263; Powell v. Charless, 34 Mo. 485; Yarnell v. Anderson, 14 Mo. 619; Boatmen's Saving Institution, v. Mead, 52 Mo. 543; Garner v. Hudgins, 46 Mo. 399. 3. It was not claimed that Cochell was liable upon the note executed after the dissolution of the partnership, but that he was still liable upon the old debt which was not satisfied and paid by the new note.

NORTON, J.

This is an action to recover money alleged to have been paid by plaintiff, as security for defendants. Judgment by default was had against Goode. Cochell filed answer, and upon trial judgment was rendered against him, from which he has appealed to this court. It appears to be admitted by the pleadings that, in the month of November, 1870, defendants were partners under the name of M. Goode & Co., and that the partnership continued till the 1st of February, 1872; that on the 29th of November, 1870, defendants, under the name of M. Goode & Co., executed their note for $600, in which they were both principals and payees, and that plaintiff and one Marles signed the note as their sureties, and that defendants, on the same day, indorsed and discounted the note at the bank of California, and received the money on the same; that said note was renewed by said defendants, with plaintiff as security, from time to time, till the 26th of November, 1871, at which time it was again renewed by defendants as principals, and Leabo as surety. The evidence tended to show that this note was again renewed in February, 1872, after the dissolution of the partnership between defendants, and that the renewal note was executed by defendant, Goode, and plaintiff as surety, and that it was renewed from time to time, till, in the year 1873, it was paid by plaintiff. The evidence also tended to show that when the note was renewed in February, 1872, plaintiff knew of the dissolution of the partnership. It is insisted that the judgment should be reversed because of the refusal of the court below to continue the cause on defendants' application, and because error committed in giving and refusing instructions. The court gave an instruction telling the jury that the facts above stated, as admitted, were confessed by the pleadings, and also the following on the part of the plaintiff; that if they further believe, from the evidence, and so find the facts to be, that the said note, so indorsed and discounted to the Bank of California by M. Goode & Co., as principal, and the said Leabo as security, was afterwards renewed on the 24th day of February, 1872, and that the same was renewed, from time to time, till and including a renewal on the 18th day of February, 1873, by the said M. Goode, as principal, and the said Leabo, as security, then the jury are instructed that if they believe, from the evidence, that the renewal by Goode, as principal, was for the same debt that was contracted by M. Goode & Co., it is wholly immaterial, so far as the rights of the plaintiff, Leabo, are concerned in this suit, whether the said renewals were made by M. Goode & Co., or by M. Goode. And should the jury further believe, from the evidence, that the money received by M. Goode & Co., from their discounting of the first note to the bank of California, was used by them in their co-partnership business, and that the said Leabo paid off and discharged the said debt so created, by paying off to the said bank the said last renewal note, then the jury should find for the plaintiff.

1. PARTNERSHIP: renewal notes: payment.

It is insisted by defendants that the renewal of the note of M. Goode & Co., on which plaintiff was bound as security, by M. Goode in February, 1872, was a payment of the debt of M. Goode & Co., and that by the execution of this note by plaintiff, he became the security of M. Goode alone, and the subsequent payment of the debt by plaintiff created no liability on the part of defendant Cochell. We do not think this proposition tenable. The proof shows that the debt when created, was a firm debt, that the money procured on the note was used by the firm in its business, and that plaintiff was a security for defendants as partners. The substitution of the note of M. Goode with plaintiff as security, in renewal of the note of M. Goode & Co., or by way of continuing the debt, did not, from the bare receipt of it by the creditor, become a payment of the firm debt. The acceptance of the note, to amount to payment, must be taken expressly as payment by the agreement of the parties. It is not an extinguishment of the debt until it is paid, and then it becomes full payment. This doctrine is fully recognized and plainly stated by this court in the case of Appleton v. Kennon, 19 Mo. 637, and cases there cited.

Applying the principle above stated to the case at bar, and a solution of the question presented is attainable. The debt created in 1870, for the payment of which plaintiff was bound as security, was the debt of M. Goode & Co., and remained their debt till it was paid. If the note given in 1872 to the bank and signed by Goode alone and plaintiff as security is to be considered as a payment and extinguishment of the debt evidenced by the note of M. Goode & Co., from the bare fact of its reception, then Cochell is discharged from all liability to plaintiff. But, in the absence of evidence showing that by agreement of the bank and Goode it was accepted in payment of the original debt, and was so intended at the time, in the language of Judge Rvland in the case supra, it is but payment submodo; it is not an extinguishment or satisfaction of the debt until the note be paid.

2. _____: _____: payment by surety.

It follows then necessarily, in this case, that if the debt of Goode & Co. was neither extinguished nor satisfied till the actual payment of the note signed by Goode alone and plaintiff as security, the defendant is liable to plaintiff in this action. The debt of Goode & Co., on which plaintiff was bound as surety, continued to exist as their debt, and it only became satisfied by the payment made by plaintiff, and, if so paid by him, we cannot see on what principle his right to recover of defendant, Cochell, can be denied. It will not be pretended that, if plaintiff had paid the note of Goode & Co. at the time it matured in 1872, on the last renewal of M. Goode & Co., he could not have maintained his action and recovered from Cochell the amount so paid, notwithstanding the dissolution of the partnership of Goode & Co. Nor do we see how the substitution of the note of Goode and plaintiff, by way of renewal or continuation of the debt, could change his rights, if the debt of Goode & Co. was only satisfied by the payment of the substituted note. This payment if made by plaintiff was made to satisfy, and did satisfy a debt for which defendant, Cochell, was at the time liable, and for the payment of which plaintiff was his security.

In the case of Powell v. Charless' Admr's. 34 Mo. 485, it was held that after the dissolution of a partnership the execution by one partner...