Marshall v. Mathers
| Decision Date | 30 October 1885 |
| Docket Number | 12,055 |
| Citation | 3 N.E. 120,103 Ind. 458 |
| Parties | Marshall v. Mathers |
| Court | Indiana Supreme Court |
From the Monroe Circuit Court.
The judgment is affirmed, with costs.
J. H Louden and R. W. Miers, for appellant.
J. W Buskirk and H. C. Duncan, for appellee.
Suit by Sallie R. Mathers against Samuel A. Smith, Solomon Green and Robert Marshall upon a promissory note for two hundred dollars, dated October 14th, 1878, and payable five months after date.
Smith was not served with process. Green and Marshall, appearing to the action, demurred to the complaint, but their demurrer was overruled. They then answered:
First. Denying the execution of the note, upon the theory that the instrument sued on had been materially changed after they had signed it.
Second. That they, the said Green and Marshall, had signed the note as sureties for their co-defendant Smith, and not otherwise which fact was well known to the plaintiff; that one Henry C. Rhorer was the duly authorized and acting agent for the plaintiff, managing and attending to her business, and having special charge of the taking and the collection of the note in suit; that in the year 1879, after the note became due, the said Smith, the principal therein, being then about to leave the county of Monroe and State of Indiana, and being then engaged in making arrangements to emigrate to the State of Kansas, they, the said Green and Marshall, notified the plaintiff, and the said Rhorer as her agent, to cause suit to be instituted upon said note; that the plaintiff, and the said Rhorer as such agent, waived the putting of the said notice in writing, and agreed that the verbal notice so given was sufficient, and also agreed to release them, the said Green and Marshall, from any further liability on said note, and did then and there release them from any such liability on the same, and agreed to take said Smith for said note.
A demurrer was sustained to this second paragraph of the answer, and the circuit court, after hearing the evidence, made a finding in favor of Green, and against Marshall, and rendered a separate judgment against the latter for a balance found to be due upon the note.
It is first complained that the demurrer ought to have been sustained to the complaint. There was some informality and uncertainty in the complaint; but we do not regard it as having been fatally defective upon demurrer for alleged substantial insufficiency.
It is next complained that the demurrer was wrongfully sustained to the second paragraph of the answer. This paragraph, as has been seen, failed to aver that the appellee did not bring suit upon the note as she was orally required to do, and did not allege any other fact as a reason for the appellant's release from liability on the note. The averment that the appellant was so released was a mere conclusion of law, when taken in connection with the context. The facts averred did not, therefore, constitute a defence to the action. In the case of Harris v. Brooks, 21 Pick. 195, cited by counsel, the facts which were held to be sufficient to discharge the surety were distinctly stated. The facts, so far as facts were averred in the paragraph before us, do not make a case in all essential respects parallel with that case, nor even analogous to it. In that case, the surety offered to take up the note after it became due, but the creditor would not permit him to do so. We have not, consequently, considered whether that case affords a precedent which ought to...
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