Petty v. Douglass

• Decision Date: 31 October 1882
• Citation: 76 Mo. 70
• Parties: PETTY, Appellant, v. DOUGLASS.
• Court: Missouri Supreme Court

76 Mo. 70

PETTY, Appellant,

v.DOUGLASS.

Supreme Court of Missouri.

October Term, 1882.

Appeal from Caldwell Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

C. S. McLaughlin for appellant.

NORTON, J.

This suit was instituted upon a note in which A. P. Douglass was principal, and A. Sovereign, security. In a trial of the cause in the circuit court of Caldwell county, where it had been taken by appeal, judgment was rendered in favor of said Sovereign, from which plaintiff has appealed.

Sovereign, the security, sought to be excused from liability on the ground that after the note became due he notified the plaintiff that Douglass, the principal, was about to fail, and to make his money out of him, as he, Sovereign, was unable to pay the debt; and on the further ground that plaintiff had extended the time for payment of the note.

1. PRINCIPAL AND SURETY: notice to sue.

The notice given by Sovereign to plaintiff to make the money out of Douglass, was not in writing, but merely verbal, and was not, therefore, available to defendant as a defense, as has been held by this court in the following cases: Langdon v. Markle, 48 Mo. 357; Cain v. Bates, 35 Mo. 427; Freligh v. Ames, 31 Mo. 253.

2. ____: extension of time.

The second ground of defense, viz: extension of time for payment, relied upon, is equally unavailable for the reason that the evidence wholly fails to establish any consideration for the promise of plaintiff to give further time or indulgence. The evidence shows that Douglass, the principal in the note, paid plaintiff $100 and also the interest then due on the note, amounting to $10, and that plaintiff agreed not to press him for the remainder, although defendant said he had the money and could pay the entire amount of the note if plaintiff demanded it. Part payment of a note after maturity is no valid consideration for an extension of time. Parsons on Bills and Notes, p. 240.

The court erred in refusing to instruct as requested by plaintiff, that under the evidence plaintiff was entitled to recover, and in giving an instruction to the effect that if the jury believed that notice was given to plaintiff to make the money out of the principal, and that defendant paid $110 on the note, saying he had the money to pay it all if demanded, and plaintiff did not demand it, and agreed not to press him, they would find for defendant Sovereign.

For the errors above indicated the judgment will be reversed and the cause remanded, in which all concur.