Smarr v. Schnitter

• Decision Date: 31 October 1866
• Parties: ELIZA E. SMARR, Appellant, v. PETER SCHNITTER AND WILLIAM STEVENS, Respondents.
• Court: Missouri Supreme Court

38 Mo. 478

ELIZA E. SMARR, Appellant,

v.PETER SCHNITTER AND WILLIAM STEVENS, Respondents.

Supreme Court of Missouri.

October Term, 1866.

Appeal from Hannibal Court of Common Pleas.

Plaintiff sued defendants upon a note executed by Schnitter, Stevens and one McMaster, the two latter being securities, dated July 12, 1856, and payable in twelve months. Schnitter made default, Stevens pleaded a discharge by an extension of time of payment, &c. At the trial testimony was given to prove an agreement, to extend the time of payment, made between plaintiff and Schnitter without the consent or knowledge of Stevens. The deed of trust given by Schnitter was also given in evidence; its terms are sufficiently stated in the opinion.

The plaintiff prayed the following instructions:

1. Unless the jury believe from the deed read in evidence that an extension of time was given to Peter Schnitter on said note, and they further find from the evidence that said Schnitter was the principal in said note and defendant merely security in said note, they will find for plaintiff.

2. The jury are instructed that the contract between the plaintiff and Peter Schnitter being reduced to writing in the deed of trust, they will look to said deed of trust alone for the evidence of the contract between said parties; and any conversations or propositions prior to the execution of said deed of trust are not to be regarded by the jury in making their verdict.

3. If the jury believe from the evidence that the plaintiff took a deed of trust from Peter Schnitter to secure the note sued on, after said note was given and fell due, without the knowledge or consent of the defendant Stevens; and they further believe from the evidence that said Schnitter was the principal and said Stevens was the security in said note, they will find for the plaintiff, unless they further believe from the evidence that by taking said deed of trust the plaintiff changed, altered or modified the original contract, and thereby the plaintiff deprived himself of his right to sue on the note in controversy.

4. The jury are instructed that the taking of the deed of trust in evidence from said Schnitter to J. L. Robards is only an additional security, and there is no extension of time therein given to said Schnitter.

5. That though the jury find that after the maturity of said note the said principal, Schnitter, gave the plaintiff a deed of trust on real estate merely as collateral security, the proceeds of which real estate were to be applied in satisfaction of said note, such an arrangement so made does not discharge the security, Stevens, nor affect his liability on the said note.

6. That the deed of trust by its terms did not give any further credit to said Schnitter on said note, nor did it extinguish or suspend the right of Mrs. Smarr, the plaintiff, to sue said principal; nor did it operate to release said Stevens, his security.

All which the court refused.

The defendant then asked the court to instruct the jury as follows:

1. If the jury find from the evidence in this cause that the note sued on and read in evidence was executed by Peter Schnitter as the principal and William Stevens as the security for said Schnitter, and that Eliza E. Smarr, the payee in said note, and the holder of it, after the execution of said note, without the consent of said security, William Stevens, and for the consideration of obtaining from said Schnitter additional security for said amount of said note, did agree with the said Schnitter in consideration that he would execute to her, as additional security for said debt, a deed of trust on land; and that said Schnitter did execute said deed of trust and delivered the same to said Smarr, and said Smarr agreed to give and did give the said Schnitter eighteen months' longer time in which to pay said debt, then the verdict should be for defendant.

The court gave the instruction, to which the plaintiff excepted. There was a verdict for the defendant.

Dryden & Lindley, for appellant.

The legal effect and operation of a deed put in evidence is a question for the court and not for the jury. It cannot fairly be pretended that the deed from Schnitter to Robards had the legal effect of giving Schnitter time for the...