McMahan v. Geiger

• Citation: 73 Mo. 145
• Parties: MCMAHAN v. GEIGER, Appellant.
• Decision Date: 31 October 1880
• Court: Missouri Supreme Court

73 Mo. 145

MCMAHAN

v.GEIGER, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Greene Probate and Common Pleas Court.--HON. T. H. B. LAWRENCE, Judge.

REVERSED.

C. W. Thrasher for appellant.

1. One who becomes party to a note after it has once been delivered and the consideration has passed between the original parties, incurs no liability unless there is some new consideration and a re-delivery of the note. Williams v. Williams, 67 Mo. 662; Pfeiffer v. Kingsland, 25 Mo. 66; Green v. Shepherd, 5 Allen 589; Mecorney v. Stanley, 8 Cush. 85; Stone v. White, 8 Gray 589; Tenney v. Prince, 4 Pick. 385; Parker v. Barker, 2 Met. 423; Parsons Mercantile Law, 66; 2 Am. Lead. Cas., 190. And the fact that he signs in the presence of the holder does not amount to re-delivery. Williams v. Williams, 67 Mo. 662; McPherson v. Meek, 30 Mo. 347. If the defendant was not liable upon the note, how could he be a co-surety with plaintiff or liable to contribution to him for payment of said note?

2. The O'Day judgment is not a res adjudicata as to any matter between the parties to this suit, and does not in any way change the relations or liabilities between plaintiff and defendant. Miller v. Gillespie, 59 Mo. 220; Freeman on Judg., § 158; 5 Wait's Action and Def., 188; Anthony v. Capel, 53 Miss. 350; Hughes v. Hardesty, 13 Bush 364; s. c., 4 L. & E. R. 667. No question of co-suretyship or liability of defendant to plaintiff arose or was determined in the suit of O'Day, and hence the judgment in that suit leaves the relations of the parties to this suit unchanged as to each other. Freeman on Judg., (2 Ed.) § 227. This view of the subject works no hardship on the plaintiff, for he has paid no more than he would have been compelled to pay if defendant's name had never been on the note, or if defendant had successfully defended the suit by O'Day. The failure of defendant to make a defense against the suit of O'Day did not in the least increase the rights of the plaintiff or the liabilities of the defendant. And while the judgment of O'Day against defendant might have made him liable to pay the same to O'Day, it in no wise renders him liable to plaintiff as a co-surety on the note. That judgment could not of itself create a contract or liability between plaintiff and defendant which did not before exist. In that suit McMahan and Geiger were not opposing parties, and, therefore, the judgment can settle no rights, or in any way affect the relations between them.

J. C. Cravens for respondent.

1. The defendant is estopped by the record from denying his liability as an original maker of the O'Day note. He was sued as such, and consented to judgment being entered thereon against him jointly with the other defendants. If he had not given such consent, or had appeared and resisted judgment on the ground that he was not liable at all, or only collaterally so, then the plaintiff, McMahan, would have had a good defense. But by the action of the defendant, Geiger, the plaintiff, McMahan, was thrown off his guard and deprived of the only defense which he could have made to the note. So that he is not only estopped by the record, but in this latter view he is also estopped in pais. Bigelow Estop., (2 Ed.) pp. 3, 4, and note; Love v. Gibson, 2 Fla. 598; Wilson v. Boughton, 50 Mo. 17; Spradling v. Conway, 51 Mo. 51.

2. The joint liability of the defendant with plaintiff, as a maker of said note, was fully and conclusively determined in the former suit, and the judgment therein is res adjudicata as to consideration moving the defendant to sign the same. Wood v. Ensel, 63 Mo. 193; Minor v. Walter, 17 Mass. 237; Crispen v. Hannavan, 50 Mo. 415; Willard v. Whitney, 49 Me. 235.

3. The only question open for consideration in the trial court was: “Who was the principal in said note--that is, who obtained the money?” It being clear that Creighton was the party, then the former judgment fixed the joint liability of all, and the consequent liability of the plaintiff and defendant in this case to contribute to each other, if loss occurred.

NORTON, J.

The facts in this case are as follows: That on the 23rd day of March, 1873, one Jno. O'Day loaned to one Creighton the sum of $500, for which Creighton, at the time, executed his note, together with the plaintiff, John T. McMahan; that the money for which the note was executed was given by O'Day to said Creighton on the delivery to him of the note executed as above; that none of the money was received by said McMahan, and that the loan was made on the strength of McMahan's name; that some two or more months after the execution and delivery of the note and after consideration for it had passed, said O'Day, the payee therein, requested defendant, Geiger, to sign the note, with which request he complied; that after default in the payment of said note, O'Day brought suit thereon in the probate and common pleas court of Greene county against said Creighton, McMahan and Geiger, and that service of the writ and petition was duly had upon Creighton and McMahan, and that Geiger made the following indorsement on the back of the writ intended for him, viz: “I hereby acknowledge service of the within writ, and waive the necessity of service by an officer, and consent that judgment be rendered against me and codefendants on the same;” that judgment by default was rendered in said suit against all three of said defendants, for the sum of $540; that McMahan paid in 1876, in full satisfaction of said judgment, the sum of $678.60; that the note on which said judgment was rendered, is as follows:

MARCH 20th, 1873.

Six months after date, for value received, we, or either of us, promise to pay John O'Day, or order, $500, with ten per cent interest per annum, from date.

(Signed)

J. H. CREIGHTON.

JOHN F. MCMAHAN.

W. F. GEIGER.

McMahan brings this suit against Geiger for contribution, in which he asks judgment against him for one-half the amount paid by him in satisfaction of said judgment. The trial court rendered judgment according to the prayer of the petition, from which defendant has appealed; and the sole question presented is, whether on the above facts defendant can be made liable as the co-surety of plaintiff on...