Sapington v. Jeffries

• Decision Date: 31 March 1852
• Parties: SAPINGTON v. JEFFRIES.
• Court: Missouri Supreme Court

15 Mo. 628

SAPINGTON

v.JEFFRIES.

Supreme Court of Missouri.

March Term, 1852.

APPEAL FROM FRANKLIN CIRCUIT COURT.

This is an action brought on a note executed by one C. D. Kanada, and defendant, as follows: “One day after date, we or either of us promise to pay to J. McDonald, adm'r of the estate of Huntington, dec'd, sixty dollars and ninety cents, with ten per cent. interest, from date until paid. This 2nd day of January, 1844. C. D. KANADA, A. W. JEFFRIES.”

The defendant filed an answer to plaintiff's petition, stating: 1st. That he did not owe the sum of money sued for, or any part thereof. 2nd. That he notified McDonald in his life-time, to sue Kanada, and the parties liable on the note. 3rd. That said note afterwards came into the possession of Samuel Kennett, who declared that he was agent for Huntington and McDonald, and that defendant required said Kennett more than three years before the death of Kanada, to sue Kanada and the parties liable, and said Kennett afterwards saw Kanada, and received new promises &c., and finally failed to sue Kanada, or use any diligence to try to collect said note. 4th. That said defendant was only security to said note. 5th. That said Kennett as agent and attorney for said plaintiff accepted said notice as sufficient, and did not object in any wise to its sufficiency, and that defendant would have given notice in writing, had it not been that defendant had requested said Kennett and plaintiff to sue, and that they promised that suit should be instituted, unless the debt was paid; and that defendant gave himself no further trouble about it; and also, that Kennett received the notice as sufficient, without its being reduced to writing, or else he would have notified in writing. Plaintiff moved the court to strike out said answer, because it did not state facts amounting to a defense to this action, which motion was sustained by the court, and the answer was stricken out, and the court proceeded to give judgment for the plaintiff, to which opinion and decision of the court, striking out said answer, and giving judgment for plaintiff, defendant by his attorney excepted, and applied for an appeal which was granted.

C. JONES, for Appellant. 1. That giving time to the principal, without the assent of the security in the note, discharges the security. 2 Starkie's Ev. 776, 777, 778. 2. That the failure to sue the parties liable on the note by the principal, and also by the agent, after notice given by the security to institute suit, discharges security. See Rev. Stat. on subject of Securities.

KENNETT, for Respondent. 1st. That the Circuit Court did not err in striking out the answer of the defendant, because said answer did not aver that defendant had given notice in writing to plaintiff, requiring him to sue. See Rev. Stat., pp. 998, 999, §§ 1, 2, 3. 2nd. That the averment in said answer, that the defendant requested plaintiff's agent to sue, and that said agent accepted said notice as sufficient, without requiring it to be in writing, is no defense to the action, because the notice should have been given to plaintiff and not to his agent, and should have been in writing.

RYLAND, J.

The question in this case involves the propriety of the ruling of the court below, in sustaining the motion of the plaintiff, to strike out the defendant's answer. The defendant's counsel contends, that the answer was good and sufficient, and that the court erred in sustaining the motion to strike it out. He contends, that it is a good defense, for a security in a note to show that he gave verbal notice to the plaintiff's agent, or attorney, to sue on the note, and that the agent neglected or failed to sue. The answer in this case sets forth no facts, amounting to a defense in law, to the plaintiff's petition. The defendant's facts might all have been admitted, and still they would not...