McGinnis v. Loring

• Decision Date: 10 December 1894
• Parties: McGINNIS v. LORING.
• Court: Missouri Supreme Court

28 S.W. 750

126 Mo. 404

McGINNIS v. LORING.

Supreme Court of Missouri, Division No. 1.

December 10, 1894.

JUDGMENT — PAYMENT BY SURETY — EXTINGUISHMENT — RECOURSE AGAINST COSURETY'S ESTATE — RECORD ON APPEAL — CONTRADICTORY RECITALS.

1. The word "refused," on the margin of an instruction, is controlled by a recital in the bill of exceptions that it was given.

2. The erroneous admission of evidence is cured by a charge excluding such evidence from consideration.

3. The unconditional payment by one surety of a judgment against himself and a cosurety may be pleaded in defense to an action on the judgment by him against such cosurety's administrator.

4. A surety who pays a judgment against himself and cosureties, cannot, by taking an assignment thereof, enforce the full amount of the judgment against his cosureties.

5. A surety unconditionally paying a judgment against himself and a cosurety, without taking an assignment thereof, cannot compel contribution from his cosurety.

Appeal from St. Louis circuit court; D. D. Fisher, Judge.

Action by Louis A. McGinnis, administrator of the estate of Horace Moody, against James H. Loring, administrator of the estate of William H. Cozens, upon a judgment. Judgment for defendant, and plaintiff appeals. Affirmed.

M. Kinealy, T. J. Rowes, and R. S. MacDonald, for appellant. C. A. Schnake and Jas. M. Loring, for respondent.

BLACK, J.

Plaintiff, as administrator of the estate of Horace Moody, presented to the probate court of the city of St. Louis a judgment for classification against the estate of William H. Cozens. The probate court rejected the demand, and the plaintiff appealed. The circuit court gave a like judgment, and the plaintiff appealed to this court. The defense relied upon in both courts was this: that the judgment had been paid by persons acting in the interest of the estate of Alexander Lyle, he being one of the judgment debtors.

The facts which stand admitted or are proved beyond a doubt are to the following effect: William H. Cozens, Alexander Lyle, and two other persons were sureties on three bonds given by Isaac Fisher, as curator of the estates of Edward Clark, Robert Clark, and Anna Clark, a separate bond being given for each ward. On the 22d March, 1872, Edward Clark obtained judgment on the bond given for his benefit against Fisher, Lyle, and Cozens for the sum of $2,497. Fisher then owed each of the other wards a like amount, but their claims were never reduced to judgment. Execution was issued on the judgment. While matters stood in this shape, Alexander Lyle, the only then solvent judgment debtor, caused his son Oscar to open negotiations with Mr. Babcock, looking to a settlement of the judgment and the claims of the other minors. Babcock was the attorney who obtained the judgment. Alexander Lyle died on the 8th May, 1874. A few days before his death he turned over to his wife some notes, and also some stock in a corporation, and at the same time gave her directions to settle the claims of the Clarks. On the 26th May, 1874, after the death of Alexander Lyle, Oscar Lyle gave Babcock $1,500 in full settlement of the judgment. In making this settlement he acted as the agent of his mother, and used money which she had borrowed for that purpose. There was at that time, and probably prior thereto, an understanding that the claims of Robert and Anna Clark should be settled on like terms. These two claims were settled by Oscar, acting again as the agent of his mother, on the 29th September, 1874, at which time Robert and Anna assigned their causes of action to Oscar Lyle. At this last-named date Oscar took a written assignment of the judgment to himself. The consideration paid for this assignment was the $1,500 paid to Babcock four months before. In January, 1876, Oscar Lyle assigned the judgment to his father-in-law, Horace Moody. In 1892 the plaintiff, as the Missouri administrator of Moody's estate, presented the judgment for classification against the estate of Cozens. Plaintiff seeks to have the judgment classed for the full amount thereof and the accrued interest thereon. He seems to be acting for and in the interest of Mrs. Lyle and some other persons, whose interest in the matter is not clearly defined. Oscar Lyle appeared as a witness for the defendant. The parties produced much other evidence. Some of it tends to show that Mrs. Lyle directed Oscar to procure an assignment of the judgment to her when he paid the $1,500 to Babcock, and that there was then an understanding that Babcock would communicate with his client, and procure an assignment of the judgment. On the other hand, there is much evidence tending to show that Oscar Lyle paid the $1,500 in settlement and discharge of the judgment, and that the assignment of it to him was an afterthought. It appears Horace Moody died a resident of the state of New York, and his wife administered on his estate there. As such...