Linne v. Forrestal

• Decision Date: 04 November 1892
• Parties: FRANK J. LINNE <I>et al.</I> <I>vs.</I> WILLIAM FORRESTAL <I>et al.</I>
• Court: Minnesota Supreme Court

51 Minn. 249

FRANK J. LINNE et al.vs.

WILLIAM FORRESTAL et al.

Supreme Court of Minnesota.

Argued October 24, 1892.

Decided November 4, 1892.

Appeal by plaintiffs, Frank J. Linne and S. P. Spates, partners as F. J. Linne & Co., from an order of the District Court of Ramsey County, Kerr, J., made February 9, 1892, granting a new trial.

October 24, 1889, James Forrestal made a contract with the city of St. Paul to construct for it certain sewers. He, as principal, and John Bell, Terence Kinney, George Mitsch and James G. Donnelly, as sureties, executed to the city, for the use of all persons who might perform labor or furnish material in the execution of the contract, a bond conditioned to pay all just claims for such labor and material. Forrestal Bros., a copartnership composed of James Forrestal and William Forrestal, entered upon the performance of this contract and continued the work up to October 8, 1890. F. J. Linne & Co., between March 1, 1890, and August 1, 1890, furnished Forrestal Bros. for use in the execution of this contract, brick and sewer-pipe of the value of $2,166.90, of which sum Forrestal Bros. paid them $986.00, leaving a balance of $1,180.90 unpaid.

This action was brought by the plaintiffs, against the Forrestals, and against the sureties on the above bond, to recover this balance. One of the defenses pleaded by the sureties was, that without their knowledge, the plaintiffs, at the request of James Forrestal, when the debt became due, for a valuable consideration extended the time of payment, and thereby released them as sureties. The evidence at the trial disclosed these facts: In May, 1890, plaintiffs organized a corporation known as the Twin City Lime and Cement Company, which on June 1, 1890, succeeded to the business and assets of F. J. Linne & Co. The bills for materials furnished by plaintiffs after that date were rendered by the corporation. On September 3, 1890, the debt to plaintiffs was past due, and S. P. Spates, one of the plaintiffs, wrote to Forrestal Bros. a letter inclosing a sixty-day note for $900, payable to the company, requesting Forrestal Bros. to sign it. This they did, and the company procured the note to be discounted and received the money on it, crediting Forrestal Bros. with $900 on the account for the materials furnished. The note was never paid by the Forrestals. The defendants claimed that the giving of this note operated to release them from liability for so much of the account. The plaintiffs claimed that the note was given as collateral or merely as an accommodation to the Twin City Lime and Cement Company. They based this claim upon the testimony of Spates, that before he wrote the letter above referred to, he went to the office of Forrestal Bros. and asked one Welker, their book-keeper, for money on the account; that Welker told him they had none, and that he then told Welker that Linne & Co. were indebted to the Twin City Lime and Cement Company for these brick, that it needed money, and that if...