McCoy v. Jones

• Decision Date: 31 October 1899
• Citation: 55 N.E. 219,61 Ohio St. 119
• Parties: McCOY et al. v. JONES et al.
• Court: Ohio Supreme Court

55 N.E. 219

61 Ohio St. 119

McCOY et al. v. JONES et al.

Supreme Court of Ohio.

October 31, 1899

Error to circuit court, Clark county.

Action by McCoy and others, trustees, against Thomas Jones and J Frock. Judgment for defendants, and plaintiffs bring error. Reversed.

The plaintiffs in error commenced an action in the court of common pleas against the defendants in error upon a promissory note, a copy of which, with the credits thereon is as follows:

‘Vienna X Roads, Clark County, Ohio, July 11, A. D. 1887. One day after date, we promise to pay to the trustees of Vienna Lodge, No. 345, I. O. O. F., two hundred dollars, with interest at eight per cent. from date, value received. Thomas Jones, J. Frock.’

‘July 2, 1888. Received on the within note $16.00.’

‘September 21, 1889. Received on the within note $16.00.’

‘December 7, 1890. Received on the within note $16.00 interest.’

‘January 9, 1892. Received on the within note, per J. S. Rice $54.98, per cent. paid on the assignment of Thomas Jones.’

Both the defendants were residents of Clark county, and were duly summoned. The defendant Thomas Jones failed to demur or answer to the petition. The other defendant, Mr. Frock, filed an answer, in which he averred that he was not indebted to the plaintiffs in any sum whatever on the note, because, with full knowledge of the plaintiffs, he executed the note without consideration, as surety for Mr. Jones, who received the whole consideration for which the note was given; that on the 2d day of July, 1888, without his knowledge or consent in consideration of the payment of interest on said note at the rate of 8 per centum per annum, the plaintiffs agreed with Mr. Jones to extend the time of payment of the note for the period of one year from the 11th day of July, 1887, and in pursuance of that agreement Mr. Jones paid to the plaintiffs the sum of $16 on the 2d day of July, 1888, as interest on the note, and that the time of payment was then and thereby, without his knowledge or consent, extended to the 11th day of July, 1888, and that he was thereby released from all liability as one of the makers of the note. A second ground of defense averred an extension of time of payment of the note for one year from and after the 11th day of July 1888, in consideration of 8 per cent. interest agreed to be paid by Mr. Jones. A third ground of defense averred that the plaintiffs agreed on teh 21st day of September, 1889, to extend the time of payment of the note until the 11th day of July, 1890, in consideration of 8 per cent. interest promised by Mr. Jones to be paid. A fourth ground of defense averred a like agreement made on the 7th day of December, 1890, for an extension from the 11th day of July, 1891. The reply admitted that Mr. Frock executed the note as surety, and denied all the other allegations of his answer.

The cause was tried to a jury at the January term, 1893, and a verdict returned in favor of Mr. Frock. A motion was filed for a new trial. Before the hearing of that motion, a judgment was rendered by the court against Mr. Jones upon the petition for the full amount due on the note, he being in default for demurrer or answer. Afterwards, late in the same term of court, the motion for a new trial was sustained, and the verdict of the jury in favor of Mr. Frock was set aside and vacated, and a new trial of the issues awarded. Afterwards, at the May term, 1897, the issues were again tried to a jury, and a verdict returned against Mr. Frock for the amount due on the note. He filed a motion for a new trial, which was overruled, and he also filed a motion in arrest of judgment, of which the following is a copy: ‘Now comes Jeremiah Frock, one of said defendants, and moves the court, upon the statements in the pleadings and record herein, to arrest judgment on the verdict in this action against said Jeremiah Frock in favor of the plaintiffs, as by the same he is in law entitled to a judgment against said plaintiffs, and especially because a judgment was rendered in favor of said plaintiffs against said Thomas Jones for the full amount of the claim sued in this action by said court on the 10th day of April, A. D. 1893, which has not been reversed or set aside, and since which time no cause of action has existed in favor of said plaintiffs against said Jeremiah Frock on the note mentioned in the petition and amended petition of said plaintiffs.’ This motion was also overruled, and exceptions taken. Judgment was then entered on the verdict. Mr. Frock filed his petition in error in the circuit court, and, among other grounds, claimed that the overruling of his motion in arrest of judgment was error. The circuit court held that the overruling of the motion in arrest of judgment was error, and for that cause alone reversed the judgment, and remanded the cause to the court of common pleas, with instructions to sustain that motion, and the proper mandate was sent to that court. Thereupon the plaintiffs in error, also plaintiffs below, filed their petition in error in this court seeking to reverse the judgment of reversal of the circuit court, and to have the judgment of the court of common pleas affirmed.

Syllabus by the Court

1. The rule that it is improper for a court to render a several judgment against one or more defendants, leaving the action to proceed against the others, in actions founded upon joint contracts wherein the plaintiff has no election as to the joinder of defendants, his only remedy being by joint action has no application in favor of a defendant who pleads that he is surety only, and has been released from liability on the contract by reason of an extension of time of payment without his consent, the plaintiff in his reply admitting such suretyship. As between parties so pleading, the contract is, in legal effect, several, although joint in form.

2. Courts are confined to a consideration of the statements in the pleadings in disposing of a motion for judgment notwithstanding the verdict, under section 5328, Rev. St. The record, outside of the statements in the pleadings, should not be considered in disposing of such motion.

Mower & Mower and Patrick Higgins, for plaintiffs in error.

George Arthur, for defendants in error.

BURKET, J. (after stating the facts).

Section 5312, Rev. St., is as follows: ‘In an...