Nugent v. Curran

• Decision Date: 30 April 1883
• Citation: 77 Mo. 323
• Parties: NUGENT v. CURRAN, Appellant.
• Court: Missouri Supreme Court

77 Mo. 323

NUGENT

v.CURRAN, Appellant.

Supreme Court of Missouri.

April Term, 1883.

Appeal from Pettis Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

Snoddy & Short for appellant.

G. C. Heard and Geo. P. B. Jackson for respondent.

WINSLOW, C.

This is an action on a promissory note executed by appellant and one Byrne to respondent, dated September 2nd, 1872, at one day, with interest at ten per cent.

The answer admits the execution of the note, and sets up as a defense, that appellant signed the note as surety; that, about three years after its execution, appellant learned that Byrne was in failing circumstances, of which he informed respondent, and told her that he wanted her to see Byrne and get other security and release him; that appellant and respondent saw Byrne in April, 1876, who, at their joint request, gave respondent a mortgage on eighty acres of land, in Pettis county, Missouri, to secure the payment of the note sued on, and another note for $200 due by Byrne and wife to respondent; that this mortgage was given on the express agreement that the time of payment of the note sued on should be extended five years, and appellant released from any further liability on said note, and that appellant never consented to be bound by the stipulation extending the time of payment. As a further defense, it is alleged, in substance, that a few days after the execution of the mortgage, appellant and respondent met, when the respondent told appellant she never intended to make the money out of him, that if she could not make it out of Byrne she would lose it; that at the time the mortgage was executed and the time extended, and at the time of the conversation aforesaid, appellant could have secured himself out of the property of Byrne, but relied on his release under the contracts and conversations aforesaid, and made no effort to do so; and that Byrne has since died insolvent. These matters are set up by way of estoppel.

The reply admits the execution of the mortgage, but alleges that it was given as additional security, and denies all the other averments of the answer.

The trial was by jury. No evidence is preserved in the record; but it is stated, generally, that appellant introduced evidence tending to sustain all the allegations of his answer, and the probable insolvency of Byrne. Also, that respondent introduced evidence tending to disprove the answer and sustain her reply; and tending to show that there was no extension of time, that appellant was not released, that Byrne was insolvent at the time of making the mortgage, and that appellant prevailed on him to execute the mortgage.

On the trial, the court gave seven instructions for respondent, five of which related to the defense growing out of the extension of time. Counsel for appellant make no point on these instructions, in their brief, and we presume their correctness is conceded.

Appellant offered the wife of Byrne as a witness, and offered to prove by her conversations between her husband and respondent, tending to show an extension of the time of payment of the note sued on. This testimony was excluded, and appellant excepted; but counsel make no mention of the point in their brief, and we presume it to have been abandoned.

1. DEATH OF ONE PARTY TO A CONTRACT: competency of another as a witness.

Respondent offered herself as a witness as to conversations between appellant and herself relating to his release from payment of the note. This was objected to, because Byrne, one of the makers of the note, was dead. The objection was overruled, and appellant excepted. Counsel still insist on the point, and submit t on all the well-known authorities, without pointing out those particularly applicable. Appellant and Byrne were parties to the contract adverse to respondent, and it has been held that the statute does not apply where such is the case, and only one of the adverse parties is dead. Fulkerson v. Thornton, 68 Mo. 468; Amonett v. Montague, 75 Mo. 43.

2. _____: _____.

Besides, the testimony related solely to conversations between appellant and respondent, as to which appellant had testified, tending to disprove the estoppel set up in the answer, which was an issue exclusively between them, and the “cause of action in issue and on trial.” Neither of the parties to this issue were dead. The cause of action, or defense, which is the same thing, originated in new matter set out in the answer by way of a defense in favor of appellant alone, which was put in issue by the reply. The answer does not allege that Byrne had any connection with these matters; and they could constitute no defense to him, or his administrator, if sued on the note. The respondent was competent on this issue. Poe v. Domic, 54 Mo. 119; Martin v. Jones, 59 Mo. 181.

3. INSTRUCTIONS.

The remaining question in the case relates to the action of the court in giving and refusing instructions in regard to the second defense alleged in the answer. For the plaintiff, the court gave the following instruction, in connection with an instruction that the burden of proof was on defendant to make out his defense: “You are instructed, in relation to the second defense, that if you should believe that plaintiff stated to the defendant that she did not intend to make the money out of him, or that if she could not make it out of Byrne, she wouldn't try to make defendant pay it, still such statements did not release defendant. To release him under this second defense, you must find from the evidence that the defendant was only a surety on this note; that plaintiff made to him such statements as induced him to believe that she had released him; that he relied upon the same, and that, in consequence of such statements made by plaintiff, the defendant forebore and omitted to take from Byrne security against paying this note; and you must further find that Byrne...