Tucker v. Talbott

• Citation: 15 Ind. 114
• Parties: Tucker v. Talbott and Others
• Decision Date: 30 November 1860
• Court: Indiana Supreme Court

15 Ind. 114

Tucker v. Talbott and Others

Supreme Court of Indiana

November 30, 1860

APPEAL from the Cass Common Pleas.

The judgment is affirmed, with costs.

D. D Pratt, for appellant.

(1) Mr Pratt, for appellant, argued: That Courts of Equity will interfere to restrain proceedings on judgments at law, when to enforce such judgments would be inequitable. Marine Ins Co. v. Hodgson, 7 Cranch 336; 1 Eden on Injunc. 69; 2 Story's Eq. Jur.; 10 Johns. 588; 7 Hill 250; Fitch v Polke, 7 Blackf. 564:

That any act of the creditor which may injure the surety, or any alteration of the agreement, or enlargement of the time of performance, without his assent, discharges the surety. Ludlow v. Simonds, 2 Caines Cas. Error, 1; 2 Bro. Ch. Cas. 579; 4 Ves. Jr. 824, 833; Rathbone v. Warren, 10 Johns. 595; Burn v. Poaug, 3 Desau. 604; Story's Eq. 321; Pain v. Packard, 13 Johns. 174; King v. Baldwin, 17 Johns. 389. This rule applies though the agreement is made after the debt for which the surety became bound, has passed into judgment. Bangs v. Strong, 7 Hill 250. That a surety may apply for aid from the Courts, as soon as he is endangered and need not wait till he has paid the debt. Taylor v. Herriot, 4 Desau. 227; King v. Baldwin, 17 Johns. 389; the surety will be discharged, if the creditor releases any securities he may otherwise have for the payment of the debt. Smith v. Turno, 1 McCord Ch. Rep. 443; Loop v. Summers, 3 Randolph 511.

W. Z. Stewart, for appellees.

(2) Mr. Stewart, for appellees: That a judgment cannot be impeached for want or failure of consideration. Nelson v. Sharp, 4 Hill 584; French v. Shotwell, 6 J. Ch. R. 235; 2 Cond. R. 519, 520; Cleine v. Crump, 11 Ind. 125.

OPINION

Worden, J.

Mitchner Tucker, the appellant, sued John M. Talbott, A. A. Hammond, Washington H. Talbott, and Joshua Tucker, alleging, in substance, the following facts, viz: That on November 12, 1857, Joshua Tucker, one of the defendants, was indebted to the other defendants, for goods before that time sold and delivered, in the sum of $ 437, for which debt the plaintiff was in no manner liable.

That before that time, said Joshua had been in the employment of said John M. Talbott, who was post-master at Indianapolis, as clerk in said post-office, at a salary of $ 700 a year. That by an agreement between said Joshua, and John M. Talbott, $ 400 of the annual salary of Joshua, had been reserved to apply on the indebtedness of Joshua to the other defendants; and that after making such application, there was due from Joshua, to the other defendants, on the day above named, said sum of $ 437. That on that day it was agreed, between the plaintiff and the defendants, that the plaintiff would join in a note with Joshua, payable to the other defendants, one day after date, for said sum of $ 437, and that he and Joshua would execute a power of attorney to confess judgment thereon, in consideration that the judgment should, by agreement, stand fifteen months from its date without replevin bail, and without the issuing of an execution thereon, and in consideration that Joshua should be continued in his said employment as clerk in the post-office, at a salary of $ 700, until he could, from his earnings, pay the debt. The note and power of attorney were accordingly executed, and a judgment taken thereon, in the Court below, on November 14, 1857. Copies of the note and judgment are set out. The note is in the usual form, whereby the Tuckers agree, jointly and severally, to pay the other defendants, the said sum of money, one day after date. It is ordered on the record, after the entry of the judgment, by the agreement of parties, that execution be stayed fifteen months without replevin bail.

The plaintiff avers that his sole object in becoming surety for the payment of the debt, was to enable said Joshua, who is the son of the plaintiff, to discharge the debt by his services as such clerk. That the distinct condition upon which he thus bound himself, was, that his son should be retained in his said employment, as such clerk, until from his earnings he could pay the debt; and that he insisted upon a stay of execution for fifteen months, in order that there should be full time for that purpose, to which condition the payees assented.

It is further alleged, that Joshua continued in the employment aforesaid, until August 19, 1858, when he was discharged by the said John M. Talbott, without any just cause; and that the defendants, Talbott & Co., have since that time refused to perform the said contract and condition upon which the plaintiff became surety for the payment of the debt. That up to the time of Joshua's discharge, he was entitled to credit on the judgment, for his services, in the sum of $ 186, for which Talbott & Co. gave him receipts to apply thereon. The plaintiff avers that by reason of the breach of the above condition, he is absolved from the payment of the judgment, or any part thereof, being only a surety, and having bound himself only upon the condition aforesaid. Prayer that Talbott & Co. be perpetually enjoined from collecting any portion of the judgment from the plaintiff, and for other relief.

To this complaint a demurrer was sustained, and the plaintiff excepted. Judgment for the defendants.

The...