Shipp's Adm'R. v. Suggett's Ad'R.

• Court: Kentucky Court of Appeals
• Writing for the Court: Simpson
• Citation: Shipp's Adm'R. v. Suggett's Ad'R., 48 Ky. 5 (Ky. Ct. App. 1848)
• Decision Date: 07 December 1848
• Parties: Shipp's Adm'r. <I>vs</I> Suggett's Adm'r.

48 Ky. 5

Shipp's Adm'r. vs Suggett's Adm'r.

Court of Appeals of Kentucky.

December 7, 1848.

ERROR TO THE SCOTT CIRCUIT.

JUDGE SIMPSON delivered the opinion of the Court.

THIS suit, by petition and summons, was brought on a note of $1,050, purporting to have been executed by William S. Sweatmen, E. P. Suggett and Henry Sweatman, payable to Richard W. Shipp.

Shipp, the payee, and Suggett, one of the payors, having died, the suit was instituted by Shipp's administrator against the administrator of Suggett.

The defendant plead non est factum, and to sustain his plea, relied upon two grounds. First, that his intestate had not executed the note sued on. Secondly, if he had, that it had lost its obligatory effect as his act and deed, by having the name of Henry Sweatman added, as an additional obligor without his consent, after the note had been executed and delivered by William S. Sweatman and the defendant's intestate.

The first ground relied upon to sustain the plea, presented merely a question of fact for the determination of the jury. In support of the second ground, it was proved on the trial, that the name of Henry Sweatman as an additional obligor, was placed on the note subsequently to its execution by the other obligors, and at a different time and place, at the instance of Shipp, to whom the note was given. The evidence in relation to the assent of the first obligors to the procurement of the signature of Henry Sweatman as an additional obligor, was contradictory and inconclusive.

The court, at the instance of the counsel for the plaintiff, instructed the jury, "that if they found from the evidence, that the signature of E. P. Suggett to the note sued on, was the act and deed of said Suggett, and that after he signed and delivered said note, Henry Sweatman, with his consent or approbation, signed the same as additional security, they must find for the plaintiff."

The counsel for the plaintiff also moved for the following instruction, which was refused, viz: "That the note sued on being drawn joint and several, authorized the obligee to take the additional security of Henry Sweatman, unless E. P. Suggett dissented to it."

A verdict having been returned for the defendant, and a motion for a new trial overruled, a judgment was rendered in bar of the plaintiff's action, to reverse which this writ of error is prosecuted.

The only question presented of any importance, grows out of the refusal of the court to give to the jury the foregoing instruction, as to the law of the case.

In the case of the Bank of Limestone vs Penick, (5 Monroe, 25,) it was held, that the addition of another obligor, and the insertion of his name by the obligees in the body of the note without the assent of Penick, destroyed its obligatory effect as to him.

In the subsequent cases of Pulliam, &c. vs Withers, (8 Dana, 98;) and Lilly vs Evans, (3 B. Monroe, 417,) a new obligor had been added, without inserting the name in the body of the note; but in each case, the assent of the first obligors to the execution of the note by the last one, was considered as sufficiently established by the evidence, and the effect on the validity of the note as to the first obligors, which would be produced by the addition of another obligor, without their assent, express or implied, was left undecided.

It is contended on the one hand, that there is a manifest distinction between this case and that of the Bank of Limestone against Penick. In the latter, a change had been made in the body of the note by the insertion of the name of the additional obligor, by the obligees, which act, according to the established doctrines of the law, destroyed its obligatory effect as to the first obligor. In this case, on the contrary, the note being joint and several, the addition of another obligor, did...