Schlicker v. Gordon

• Decision Date: 31 October 1881
• Citation: 74 Mo. 534
• Parties: SCHLICKER v. GORDON et al., Appellants.
• Court: Missouri Supreme Court

74 Mo. 534

SCHLICKER

v.GORDON et al., Appellants.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Moniteau Circuit Court.--HON. G. W. MILLER, Judge.

REVERSED.

Owens & Wood for appellant.

It is now well settled in this State that whatever may be the form of a note, it may be shown who received the money loaned, and who ought to pay it; and, without reference to the order of the names on a note, who is in fact the real principal in the debt. Garrett v. Ferguson, 9 Mo. 128; Scott v. Bailey, 23 Mo. 150; Coons v. Green, 9 Mo. 198; Mechanics' Bank v. Wright, 53 Mo. 153. If the defendants borrowed the money of Holloway for plaintiff, and plaintiff received the money and agreed to pay the debt out of the proceeds of his contract, then he was in equity bound to pay the debt, and was the real principal, and it is immaterial whether the defendants were principals as to Holloway or whether the plaintiff signed the note after the defendants, or as security, or whether he signed the note at all. Higgins v. Dellinger, 22 Mo. 397; Harnsberger v. Yancey, 33 Gratt. 527; s. c., 11 Reporter 29. The instruction given for plaintiff entirely ignores the issues presented by the defendants in the pleading and in the evidence. It in effect declares that if the defendants borrowed the money from Holloway, and the plaintiff signed the note as security, then he must recover in this form of action notwithstanding the fact that the money was borrowed for his use, and he was in equity and good conscience bound to pay it.Edmund Burke and Draffen & Williams for respondent.

The instruction asked by defendants was properly refused. The question was not, who ultimately received the money; but, whether defendants borrowed it in the first place and paid it to Schlicker upon a debt due to him.

NORTON, J.

This proceeding was instituted in the Moniteau circuit court under sections 3904 and 3905, Revised Statutes 1879, for judgment against defendants on account of money alleged to have been paid by plaintiff as their security upon a judgment rendered in said circuit court against defendants and plaintiff. Upon the trial plaintiff had judgment, from which defendants have appealed.

1. PRINCIPAL AND SURETY: motion by surety against principal: jury trial: practice.

It appears from the record that plaintiff had duly notified defendants, as provided in section 3905, of his intention to file a motion for judgment against them under section 3904, and that on such motion being filed defendants appeared thereto and filed separate answers denying that plaintiff was their surety on the note on which judgment was obtained, or that as such surety he had paid any money on said judgment; and averring that plaintiff was the principal in said note and that defendants were his sureties. When the issues thus made came on for trial, defendants objected to the court proceeding any further with the cause, on the ground that it had no jurisdiction to try the question presented on such a motion. This objection was overruled, and the action of the court in this particular is assigned for error.

Section 3904, Revised Statutes, provides that in all cases where judgment is given in any court, whether of record or not, upon any bond, bill or note for the payment of money or delivery of property, against the principal debtor and any surety therein, and such surety shall pay the judgment, or any part thereof, he shall be entitled, on motion, to a judgment in the same court against the principal debtor for the amount he has paid with ten per cent interest thereon from time of payment, together with costs. This section necessarily clothes the court, in which such a motion, as is authorized by it to be filed, is pending, with jurisdiction to hear and determine all questions growing out of the motion. If the question presented be one of fact, we can see no reason why it might not be submitted to a jury if either party should demand it. The court did not err in...