Smith v. Rice

• Decision Date: 31 October 1858
• Citation: 27 Mo. 505
• Parties: SMITH, Appellant, v. RICE, Respondent.
• Court: Missouri Supreme Court

27 Mo. 505

SMITH, Appellant,

v.RICE, Respondent.

Supreme Court of Missouri.

October Term, 1858.

1. The relation of maker and endorser of a promissory note so far continues after the recovery of judgments against them at the suit of an endorsee that an agreement with the maker to stay execution as to him for a specified period will operate a discharge of the endorser, and entitle him to a perpetual stay of execution.

Appeal from St. Louis Court of Common Pleas.

This was a suit by Irwin Z. Smith on two certain promissory notes against John Sigerson, the maker, and Anapias Rice, the endorser thereof. The suit was instituted in the St. Louis Court of Common Pleas. After the institution of this suit, said Sigerson, on the 10th of October, 1857, confessed a judgment, in the St. Louis Circuit Court, on said notes, in favor of said Smith. On the 19th of November, 1857, the following entry of record was made with respect to the judgment thus confessed: “Now at this day comes the plaintiff herein and consents and agrees that execution may be stayed upon the judgment obtained by him against the said defendant until the first Monday in October, 1858.” In the suit instituted in the Court of Common Pleas, the plaintiff, on the 27th of October, 1857, dismissed as to Sigerson, and took a judgment by default against Rice. On this judgment an execution was issued, and property belonging to Rice was levied on. Rice filed a petition in the Court of Common Pleas setting forth the above facts, and praying that said execution might be quashed and a satisfaction of said judgment against Rice entered. The court ordered “that execution against the said defendant, Anapias Rice, on the judgment be perpetually stayed.” It is to reverse this order that the plaintiff appeals to the Supreme Court.

I. Z. Smith, for appellant.

I. The record does not show that there was any valid agreement for the stay of execution. It was a mere order to the clerk. It might at any time have been countermanded. (1 Bailey, 412; 9 Thomp. 382; 4 Strobh. 87; 11 S. & R. 179; 4 McLean, 87; 3 McLean, 376; 5 Wend. 505.) Even if the agreement was valid, it would not discharge the endorser. The rule that giving time to the maker discharges the endorser does not apply after judgment. (2 Chitt. R. 125; Sto. on Notes, 417; 8 M. & W. 669; Thompson on Bills, 542.) None of the rights of the endorsee were affected. By paying the amount of the judgment, he could have maintained an action against the maker for so much money paid. (Bullock v. Campbell, 9 Gill, 182; Hammond v. Freeman, 9 Ark. 62.)

Decker, for respondent.

I. If a principal discharges, or gives time to the other principal, he discharges all the sureties, where such time is given without the consent of the other sureties. (2 Blackf. 14; 2 Ves. Jr. 540; 12 Wheat. 557; 6 Pet. 250; 9 Barn. & Cress. 707; 10 id. 578; 3 B. & P. 363; 2 Camp. 179; 2 B. & P. 60; 8 East, 576; 15 id. 617; 4 Ad. & El. 577; 2 Swanst. 193; 4 Taunt. 456; 7 id. 126; 3 Esp. 46; 2 Meriv. 271.)

RICHARDSON, Judge, delivered the opinion of the court.

The doctrine may be considered as settled in this state--where law and equity are administered in the same form and in the same suit--that a judgment does not extinguish the relation of principal and surety (Morton v. Rice, 19 Mo. 263); and the same causes that will discharge a surety will discharge an endorser. (Bank U. S. v. Hatch, 6 Pet. 250.)

The entry in the record in the case of the plaintiff against Sigerson in the Circuit Court, on the 19th November, 1857, by which the plaintiff consented and agreed that execution on the judgment should be stayed, ought to stand on as high ground as an agreement of a like kind under seal, and is certainly evidence of a valid contract. The plaintiff put it out of his power to sue out execution before the first Monday of October, 1858, and the record entry operated as a valid contract for delay, whereby the plaintiff suspended his remedy against the principal for a stipulated period. The plaintiff had no right to receive payment of the judgment from Rice before October, 1858, because he had agreed with Sigerson...