State ex rel. Mueller v. Mannig

• Decision Date: 31 January 1874
• Citation: 55 Mo. 142
• Parties: THE STATE to the use of J. P. MUELLER, ADM'R OF THE ESTATE OF GEORGE PFAUTSCH, dec'd, Respondent, v. OTTO MANNIG AND RUDOLPH C. SCHLENDER, Appellants.
• Court: Missouri Supreme Court

55 Mo. 142

THE STATE to the use of J. P. MUELLER, ADM'R OF THE ESTATE OF GEORGE PFAUTSCH, dec'd, Respondent,

v.OTTO MANNIG AND RUDOLPH C. SCHLENDER, Appellants.

Supreme Court of Missouri.

January Term, 1874.

Appeal from the Gasconade Circuit Court.

Henry Flanagan, for Appellants.

I. The answer alleged, and the motion to strike out, admitted, that when the judgment was rendered, England was able to pay it, and hence, the agreement to stay execution for four months during which his property was swept away by other parties, deprived the sureties of their recourse upon England and it was, therefore, a fraud upon them. The plaintiff having made his election with a full knowledge of his remedies, he is concluded by that election. (Beedy vs. Bengert, 1 Ham. (Ohio) 157; Winterbowen vs. Haycroft, 7 Bush., [Ky.] 57; Hendrickson vs. Hinckley, 17 How., [U. S.] 443; Burton vs. Hynson, 14 Ark., 32.) The remedy against the clerk under the statute and which is highly penal, merges the other remedies, and the plaintiff in adopting it waived all others.

II. The extension of four months and the treble damages formed the basis of a valid and binding contract. The agreement to suspend the execution was enforcible at law. We submit, therefore, that it discharged the sureties. (Calvin vs. Wiggin, 27 Ind., 489; Robinson vs. Miller, 2 Bush., [Ky.,] 412; Howe vs. Railroad, etc., 37 N. Y., 297; Brooks vs. Wright., 13 Allen, [[[[[Mass.,] 72.) In Bullit's Ex'r vs. Winston, 1 Munf., 267, the Court of Appeals of Virginia held, that the surety was discharged on the ground, that the creditor who held a judgment against the principal, had by a letter addressed to the sheriff, countermanded the execution against the principal. And in the Commonwealth vs. Miller, (8 Serg. & Rawle, 458), the Supreme Ct. of Pennsylvania held, that when the creditor has the means of satisfaction in his own hands and chooses not to hold it, the surety is discharged. “If the creditor does any act for the ease of the principal without the privity of the surety, by which the security is injured or exposed to injury, that act may be laid hold of for the surety's relief;” per Gaston, Judge, in Cooper, etc. vs. Wilcox, 2 Dev. & Bat. Eq., 91. (Brown vs. Riggins, 3 Ga., 405; Rees vs. Berrington, 2 Ves. Sr., 540; Law vs. East M'd Co., 4 Id. 833; Clark vs. Niblo, 6 Wend., 236.) The answer clearly shows, that the sureties have been prejudiced by the act of the creditor.

III. After judgment, the rule is more stringent as against the creditor. He then has the property of the principal debtor in his power and he lets it go at his peril; he is a trustee for the sureties and he must not jeopard their interests without their consent by any act or omission of his (Lennox vs. Prout, 3 Wheaton, 520; Bay vs. Tallmadge, 5 Johns. Ch., 305; Rathbone vs. Warner, 10 Johns., 591; Nelson vs. Williams, 2 Dev. & Bat. Eq., 118; Thomas vs. Young, 15 East., 617, and cases cited.)

IV. The answer tendered a good defense and it was error to strike it out.

Seay & Kisskaddon, for Respondent.

I. An agreement by the creditor to enlarge the time of payment of a debt unless it is made upon such consideration or in such form as to be binding upon the creditor, and to estop him from suing the principal does not discharge the surety. (McLemore vs. Powell, 12 Wheat., 554; Nichols vs. Douglas 8 Mo., 49.) To constitute an extension of time to the principal by the creditor as a discharge of the sureties, there must be a new and valid agreement between the creditor and principal varying the original contract. (King vs. Baldwin, 2 Johns. Ch., 554; S. C. 2 Am. Lead. Cases, 364; see also, U. S. vs. Simpson, 3 Penn., 437; Farmers' B'k vs. Reynolds, 13 Ohio, 84; Lenox vs. Prout, 3 Wheat., 520; Baker vs. Marshall, 16 Vt., 522.) No such contract is stated in defendant's answer. The debt being established under the statutory proceeding in question, the plaintiff was entitled to treble damages at all events, and he could obtain it without granting further time. And mere delay in calling upon the principal will not discharge the surety. Cases cited, supra, and Wells vs. Mann., 45 N. Y., 327.

SHERWOOD, Judge, delivered the opinion of the court.

This was a suit to the use of J. P. Mueller, administrator of the estate of George Pfautsch, deceased, brought in the Gasconade Circuit Court against Mannig and Schlender, sureties on the official bond of Joseph C. England as clerk of said Circuit Court, on account of certain sums of money alleged to have been collected by said England as such clerk on fee bills; and which sums he had failed to pay over to George Pfautsch, deceased, to whom it was alleged in the petition they should have been paid.

The defendants answered, pleading the statutory general issue, and also special matters to the effect that a suit had been previously brought against England alone on account of the same matters alleged in the petition as a cause of action in the present suit; that England and said administrator had adjusted and settled the claims of the said administrator against England, by the latter permitting judgment to go against him in said court for treble the amount the administrator claimed; that this judgment was rendered in 1870; that the administrator, in consideration of England so permitting...