Perry v. Barret

• Decision Date: 31 March 1853
• Parties: PERRY, Respondent, v. BARRET, Appellant.
• Court: Missouri Supreme Court

18 Mo. 140

PERRY, Respondent,

v.BARRET, Appellant.

Supreme Court of Missouri.

March Term, 1853.

1. A party who writes his name on the back of a note, payable to another, is prima facie liable as a joint maker.

2. If a plaintiff, in his petition, charges the defendant as guarantor of a note, he cannot recover against him as surety, although the defendant sets up in his answer that he is surety, and although the contract of a surety is more onerous than that of a guarantor.

3. The contract of a guarantor is different from that of a surety.

4. Under the act concerning securities (R. C. 1845) a surety will not be discharged by the fact that the creditor whom he has notified to commence suit against all the parties liable, does not join him in the suit.

5. Nor by the fact that a co-security, who is a non-resident of the state, is not proceeded against.

Appeal from St. Louis Court of Common Pleas.

This was an action commenced in August, 1851, by Charles A. Perry against Richard F. Barret. The petition charged the defendant as guarantor of a note executed by William J. Barret, payable to Ross and Harper, and by them indorsed to the plaintiff, upon the back of which the defendant and Hiram Rich wrote their names in blank, before its delivery to Ross and Harper. The petition stated that the note was presented to William J. Barret for payment at its maturity, and payment refused, of which demand and refusal defendant was notified.

The defendant, in his answer, denied that he wrote his name on the back of the note as guarantor, but alleged that his undertaking was that of a surety, and that Hirman Rich was his co-surety. He denied any knowledge or information sufficient to form a belief as to the demand and refusal of payment charged in the petition. In a supplementary answer, filed by leave of court, he stated that, after a right of action accrued upon the note, he notified the plaintiff forthwith to commence a suit against the principal debtor and all other parties liable thereon and that the plaintiff failed to do so within the time required by statute.

On the trial, it was proved that the consideration of the notes was goods sold by Ross and Harper to William J. Barret, and that the defendant and Rich placed their names on the back of the notes before delivery, as sureties of William J. Barret.

The defendant then proved the service upon the plaintiff, in the summer of 1851, of a notice to commence suit forthwith upon the note.

The plaintiff, in rebuttal, introduced the record of a suit commenced upon this note on the 24th of December, 1850, by Robert H. Stone against William J. Barret, Richard F. Barret and Hiram Rich. The summons in that suit was returned served as to the two Barrets and “not found” as to Rich. The record showed a discontinuance of the suit as to Richard F. Barret and H. Rich, and a judgment against William J. Barret on the 30th day of October, 1851, upon which an execution was issued and returned “ nulla bona.” It was shown that the note was indorsed to Scott merely for collection, and that he had no interest in it. It was also proved that H. Rich resided at Fort Leaven worth, in the Indian territory, at the time the note was made, and had continued since to reside there.

The court gave the following instruction to the jury at the instance of the plaintiff:

1. If a suit was instituted on the note in question in the name of Robert H. Stone against William J. Barret, Hiram Rich, and the defendant in this suit, at the time shown by the record in said case read in evidence--if judgment was recovered against said William J. Barret, as shown by said record--and if the writ in that case was returned by the sheriff “not found” as to said Rich, and an execution was taken on said judgment against William J. Barret, and a return was thereon made of nulla bona--and if the said writ, judgment and execution were before the defendant gave the notice to bring suit which he has read in evidence, and if said Rich, ever since the making of said note, has resided without the jurisdiction of this state, and in the Indian country, and if said Stone instituted said suit as the agent of the plaintiff, then the plaintiff was not required to bring or institute any other suit against the parties to said note after said notice was given, to entitle him to recover.

The court, of its own motion, gave the following instruction:

2. If the jury believe from the evidence, that the defendant at the time of the making of the note in question, or prior to the delivery thereof to the payees, wrote his name on the back thereof, and that the payees indorsed the said note to the plaintiff, Perry, in trust for their creditors; that afterwards Perry indorsed said note to Robert H. Stone, merely as his agent to collect the same, then they will find for the plaintiff, and assess the damages at the amount of said note, with interest from the expiration of six months from the date thereof; unless the jury further find that, after a cause of action accrued on said note, the defendant requested in writing the plaintiff forthwith to commence suit against the maker of said note and other parties liable thereon, and the plaintiff did not commence such suit, within thirty days after the service of such notice, against William J. Barret, Hiram Rich and the defendant, and proceed in the same with due diligence, in the ordinary course of law, to judgment and execution.

There was a verdict and judgment for the plaintiff.

A. & L. A. Buckner, for appellant.

I. The appellant is not liable as a guarantor or joint maker. (Tillman v. Wheeler, 17 J. R. 325; 15 J. R. 425; 11 Mass. 440; 13 J. R. 175; 14 J. R. 349.) He is only liable as indorser, and is entitled to notice of demand and refusal. Demand and refusal were alleged in the petition, but not proved. (Hall v. Newcomb, 7 Hill, 416; Story on Bills, § 284.) The principle decided in the case of Powell v. Thomas, 7 Mo. R., should not be applied to negotiable notes under our statute.

II. The defendant is discharged by the failure of the plaintiff after notice to prosecute a suit with diligence against all the parties liable. It is no excuse for failure to prosecute Rich that he was a non resident. Under the new practice (article 5, sections 3, 8 and 13) he could have been served with process by the use of ordinary diligence. The object of the statute, in giving to the surety this right of notice, is to enable him to enforce payment by his principal, or contribution against his co-securities, in a summary manner, after paying the judgment recovered against all of them.

III. The petition charged the defendant as guarantor, and the proof showed a different contract, and therefore the plaintiff was not entitled to recover.

Todd & Krum, for respondent.

I. The defendant is liable as a maker or original promisor. (7 Mo. 440; 8 Pick. 122.)

II. If he be regarded as a surety, he is liable under the proof. The plaintiff was not obliged to pursue Rich, who was a non-resident. (7 Mo. 297.)

GAMBLE, Judge, delivered the opinion of the court.

1. Some of the questions which have been argued in this case, have been considered and decided in the case of Lewis & Brothers v. Harvey & Stewart, which was before this court on the docket of the present term. To the opinion in that case, reference is made, for the settlement of the questions which are there decided, and which are presented in this case.

2. This case has some features which are peculiar. The defendant, Barret, put his name upon the back of a negotiable promissory note, made by Wm. J. Barret, payable to Ross & Harper, and which was made for the purpose of securing Ross & Harper in part for the amount of a stock of goods sold by Ross & Harper to Wm. J. Barret. Upon this note the plaintiff, who is an indorsee of the note,...