Siewing v. Tacke

• Decision Date: 02 May 1905
• Citation: 86 S.W. 1103,112 Mo. App. 414
• Parties: SIEWING v. TACKE.
• Court: Missouri Court of Appeals

86 S.W. 1103

112 Mo. App. 414

SIEWING v. TACKE.

St. Louis Court of Appeals. Missouri.

May 2, 1905.

PROMISSORY NOTES—RELEASE OF MAKER—SUFFICIENCY OF CONSIDERATION—EVIDENCE.

1. An agreement by a debtor to pay one liquidated debt is not sufficient consideration to sustain a release by the creditor of another debt.

2. In an action on a note, defendant's evidence held not to show a release by the payee.

Error to Cape Girardeau Court of Common Pleas; John A. Snider, Judge.

Action by Mathilda Siewing against William H. Tacke. Judgment for defendant, and plaintiff appeals. Reversed.

Wilson Cramer, for plaintiff in error. William H. Tacke, pro se.

BLAND, P. J.

On November 6, 1889, Ferdinand Zoellner and William H. Tacke executed their promissory note for $600 to Antonette Zoellner, due one day after date, with 6 per cent. interest per annum. The interest on the note was paid to November 6, 1893. Mrs. Zoellner, the payee, died testate in the year 1894, and by her will bequeathed small legacies to certain of her children and grandchildren; the residue of her estate being bequeathed to Mathilda Siewing, her daughter. Henry F. Siewing, the husband of Mathilda, was named as executor in the will of Mrs. Zoellner. He qualified as such, and on February 12, 1897, assigned the note to plaintiff, who brought suit thereon, alleging the foregoing facts, and that William H. Tacke and Ferdinand Zoellner executed the note for their joint benefit. Omitting caption, the answer is as follows: "For answer to plaintiff's petition, defendant states that he did, on the 6th day of November, 1889, sign the note sued on in this action, but that he signed said note as the surety for Ferdinand Zoellner, the maker thereof, and without other consideration than to enable the said Ferdinand Zoellner to raise money therewith for his own use, and that the payee of said note had full knowledge and notice of said facts; that the payee of said note did, after the maturity of said note, for a valuable consideration, without the knowledge or assent of defendant, make an agreement with Ferdinand Zoellner, the maker of said note, whereby payee agreed to extend and did extend the time of payment of said note by said Ferdinand Zoellner for a period of one year, whereby this defendant became discharged from all liability on said note. That the payee of said note did from time to time, in each instance for a valuable consideration, without the knowledge or assent of the defendant, extend the time of the payment of said note by said Ferdinand Zoellner up to the year 1893, and that defendant was thereby discharged from all liability on said note; that the payee of said note did on the ____ day of September, 1894, for a valuable consideration, fully and finally discharge and release defendant from any and all liability on said note; that all of said facts herein stated were well known to the plaintiff herein, Mathilda Siewing, at the time she became the owner of said note; that plaintiff herein did not acquire said note for a valuable consideration, but that she received said note as a legacy, and without consideration, under the will of the original payee of said note; that defendant has not at any time since the said ____ day of September, 1894, recognized or acknowledged any liability on said note and has never paid or authorized any payment on said note in his name; and that any payments credited on said note in the name of this defendant are without his authority." The reply was a general denial. The trial was had to the court, without a jury. The court found the issues for the defendant, and plaintiff appealed.

There is but slight evidence tending to prove that Tacke signed the note as surety. There is no evidence whatever tending to show that on the ____ day of September, 1894, or on any other date, Mrs. Zoellner agreed with Ferdinand Zoellner to extend the time of payment of the note. The evidence is all one way that Ferdinand Zoellner paid the interest on the note November 6, 1893, and indorsed the payment on the back thereof with his own hand at the request of...