Newcomb v. Blakely

• Decision Date: 28 February 1876
• Citation: 1 Mo.App. 289
• Parties: ABIAL R. NEWCOMB et al., Respondents, v. DAVID BLAKELY, JR., et al., Appellants.
• Court: Missouri Court of Appeals

1 Mo.App. 289

ABIAL R. NEWCOMB et al., Respondents,

v.DAVID BLAKELY, JR., et al., Appellants.

St. Louis Court of Appeals, Missouri.

Feb. 28, 1876.

1. An assignment of a chose in action to a creditor, expressed to be to secure the indebtedness due, and interest up to a future date, is not an extension of time which will release the sureties of the debtor.

2. Sureties will not be released unless the alleged extension of time is made by a binding agreement between the debtor and creditor, based on a consideration sufficient to support a contract.

APPEAL from the St. Louis Circuit Court.

Affirmed.J. H. Wieting, for appellant, cited: Rucker v. Robinson, 38 Mo. 154; Armstead v. Wood, 1 Patt. & H. (Va.) 504; Brooks v. Wright, 13 Allen (Mass.), 72; Smarr v. Schmitter, 38 Mo. 478; Weller v. Ransac, 34 Mo. 362.

Taylor & Whitney, for respondent, cited: McKean v. Citizen R. R. Co., 42 Mo. 79; Riney v. Valandingham, 9 Mo. 816; State v. Dorman, 11 Mo. 635; Mooney v. Kennett, 19 Mo. 551; State v. Connell, 49 Mo. 282; Allen v. Phelps, 4 Cal. 259; People v. Levison, 16 Cal. 100; Garneau v. Herthel, 15 Mo. 191, 278; Eversole v. Miller, 18 Mo. 120; Ford v. Beard, 31 Mo. 461; Rucker et al. v. Robinson, et al., 38 Mo. 157; Wiley v. Hight, 39 Mo. 130; Headlee, Admr. v. Jones, 43 Mo. 235; Orme v. Young, Halbs. N. P. C. 84; Nichols v. Morris, B. & Ad. 41; Adville v. Glendening, 7 Taun. 126; Blackstone Bank v. Hill, 10 Pick. (Mass.) 132; Fulton v. Mathews, 15 Johns. 433; Rabe v. Wells, 3 Cal. 151; Gale v. Pearson, 6 Mo. 253; Martin v. Hagan, 8 Mo. 505; Hoyt v. Williams, 41 Mo. 270; Clayton v. West, 2 Cal. 382; Bellesime v. McCoy, 1 Mo. 18; Chouteau v. Uhrig, 10 Mo. 62; Walter v. Catchcart, 18 Mo. 256.

BAKEWELL, J., delivered the opinion of the court.

This appeal is presented by defendants George M. and William S. Stewart, who are sued as sureties on the bond of defendant Blakely.

It appears that plaintiffs were general agents of the American Life Insurance Company, and entered into a written contract with defendant Blakely, as sub-agent, whereby, in consideration of certain commissions he was to receive, an advance of $250 on the execution of such agreement, and a further advance of $150 in sixty days thereafter, he agreed to work for plaintiffs, as sub-agent, for two years, and to refund to them the $400 thus advanced, in monthly installments of $40 each, beginning with the third month after the date of such agreement. On the back of this agreement is a bond with a penalty of $1,500, whereby defendants bind themselves that Blakely shall keep this agreement in all respects. Plaintiffs advanced the $400. Blakely, when he had received the money, left them, and went to work for another company. He never returned to plaintiffs the money advanced. Afterwards, he proposed to assign to plaintiffs a part of the money he expected to receive from the United States for services in taking the census. To effect this object, an instrument was signed and sealed and delivered by Blakely to the plaintiffs, dated May 28, 1870, and which has the following clause: “This assignment is made to secure the said A. R. and C. M. Newcomb for an indebtedness, in the sum of $458, due them as advance made me under a contract between myself and said A. R. and C. M. Newcomb, dated November 24, 1869, and as the interest on the same to August 24, 1870.”

Defendants claim that an extension of time was given by plaintiffs to Blakely, and that the sureties were thereby discharged.

It appears that the sum of $458 mentioned in the assignment was made up of the $400 advanced, some small sums due by Blakely, and interest on the whole up to August 24, 1870; and that the Stewarts knew nothing of the assignment till it was completed. Blakely swears that he proposed to give this assignment to plaintiffs on condition that they would release his sureties, and that they promised him, in consideration of the assignment, that they would not sue till August 24th. This is contradicted by both the plaintiffs, who swear that they refused to give time, declared they would do nothing to release the sureties, and refused to take the assignment until their lawyer had prepared the form, and assured them that it would not release these sureties nor give time to Blakely. Their testimony as to refusing to give time is corroborated by their clerk.

There was a verdict and judgment for plaintiffs.

The court, at the instance of plaintiffs, granted the following instructions:

“The court declares the law to be that, if it finds from the evidence that plaintiff advanced to defendant Blakely the $400 alleged, and that the same was not repaid to plaintiffs, or any part thereof, then the plaintiffs should recover in their action against Stewart & Stewart, unless the court finds from the evidence that there was an agreement, based on a consideration, between the plaintiffs and the defendant Blakely, by which plaintiffs bound and obligated themselves to grant unto said Blakely an extension of time for the repayment of said $400, as claimed by defendants in their amended answer.

The court further declares the law to be that the effect of said assignment set out in defendant's answer, of itself, does not amount to an agreement for an extension of time, and the court should not find that there was an agreement to such extension of time unless it believes from the...