Walls v. Baird

• Decision Date: 26 September 1883
• Docket Number: 10,176
• Citation: 91 Ind. 429
• Parties: Walls et al. v. Baird
• Court: Indiana Supreme Court

91 Ind. 429

Walls et al. v. Baird

No. 10,176

Supreme Court of Indiana

September 26, 1883

Petition for a Rehearing Overruled, Reported at: 91 Ind. 429 at 436.

From the Boone Circuit Court.

The judgment is affirmed, with costs.

W. B Walls and W. H. Thompson, for appellants.

C. S Wesner, T. A. Hendricks, A. W. Hendricks, C. Baker, O. B Hord, A. Baker and E. Daniels, for appellee.

OPINION

Franklin, C.

Appellee sued appellants on a promissory note and for the foreclosure of a mortgage. The note was executed by Walls and Lane, and the mortgage was executed by Walls and wife upon real estate held by them jointly by entireties. The defence was payment and a release of Lane from all liability on the note, and claiming such release as an exemption from all liability of the other defendants upon either the note or mortgage. The pleadings are extensive, but all the issues culminate in and are based upon the above named questions. The defendants withdrew their general denials, admitted the cause of action, confessed the claim for attorney fees, and assumed the burden of proof upon their affirmative issues. The cause was submitted to a jury for trial, the evidence heard, and plaintiff demurred to the evidence, which was sustained by the court, and a final judgment and decree rendered for the plaintiff. There was no personal judgment rendered against either of the defendants. There was a finding for the plaintiff for the amount due, and over a motion for a new trial a decree of foreclosure was rendered for its payment.

The assignments of error contain various specifications, but that mostly relied upon by appellants is upon the sustaining of the demurrer to the evidence. If Lane was released from the note, and his release released Walls also from the note, and Walls and wife from the mortgage, then the demurrer was not correctly sustained.

There was very little if any conflict in the evidence. The facts proved are substantially as follows: Walls and Lane had been partners in the mercantile business in the city of Lebanon, Indiana. They borrowed money of Baird for which the note in suit was given and it was used in their said partnership business. In August, 1877, they settled up their partnership, except the payment of appellee's note and mortgage, then amounting to $ 1,781.38. Lane then held an older note and mortgage on Walls and wife; and Lane became desirous that appellee's note should be settled, or that he should be released from liability upon it. Lane was the father-in-law of both Walls and Baird.

Upon the condition of the accounts between Walls and Lane, they agreed that if Baird would consent, Lane would pay Baird $ 381.38 and surrender to Walls his note and mortgage then amounting to $ 766.75, and Walls should execute a new note on time to Baird for $ 1,400, and take up and cancel the old partnership note and the mortgage herein sued on. Lane presented said agreement to Baird in a written statement containing the part that each was to pay. Baird declined to accept the proposition, but agreed with Lane that if he would pay the $ 381.38 and surrender to Walls the said older note and mortgage, and enter the record thereof satisfied, he would release Lane from all liability on the note. Lane paid the $ 381.38; and there was endorsed upon the written statement of what each would pay, the following:

"I have credited Lane with the $ 381.38, this date.

(Signed) "J. W. Baird."

The statement is signed by W. B. Walls.

Lane then surrendered the older note and mortgage to Walls and satisfied the record thereof.

The note sued on was for $ 1,868.50, dated August 19th, 1873, and contained the endorsement of several credits, among which are the following: "Received in settlement with T. C. Lane, $ 381.38, August 3d, 1877. I hereby release the said Lane of any further obligation as security to said note."

The mortgage bore the same date of the note and contained the provision that "the mortgagors expressly agree to pay the sum of money above mentioned without relief from valuation laws," and was duly executed, acknowledged and recorded. The mortgage record contained on the margin several endorsements of credits, among which are the following:

"August, 3d, 1877.

"Received on within note $ 381.38, endorsed on note. I hereby release the said Lane of any further obligation of security to said note.

(Signed) J. W. Baird."

The written statement above referred to reads as follows:

"Lebanon, Indiana, August 4th, 1877.

"Statement as to the amount due from Lane and Walls on their note due George W. Baird, $ 1,781.38, Lane and Walls having made a full settlement of all accounts between them, including a note and mortgage held by Lane against Walls. All accounts and debts of Lane and Walls being paid with the exception of the amount due Baird. Walls is to pay on the note due from Lane and Walls $ 1,400. Lane is to pay Baird on the note due from Lane and Walls $ 381.38.

"William B. Walls."

Lane testified that the agreement was that he should be released. Baird testified that he intended to release Lane, and thought he was released. Lane immediately returned the statement of how much each was to pay to Walls, with his credit endorsed thereon, surrendered the note and mortgage on Walls to him, and entered satisfaction of the record of the mortgage. Baird at the time refused to surrender the note and mortgage sued on, for the reasons that Walls was good for them, and he did not want to change them.

Upon these facts being proved, appellants Walls and wife insist that Lane was released; and that by his release Walls was released from the note, and Walls and wife from the mortgage. All of which are controverted by appellee.

Joint and several assignments of error have been filed, and a number of specifications are made under each, but they are all dependent upon the foregoing propositions in relation to the release, and it is unnecessary to set them forth, or discuss each in detail.

Appellee insists that Lane was not released; that there was no consideration for the release; that the $ 381.38 paid by Lane was only a partial payment of a debt for which he was liable to pay the whole. In this we think appellee is mistaken. Lane surrendered a note and mortgage to Walls for $ 766.75, in addition to the payment, and in part consideration of his release upon this note. We think there was a sufficient consideration for the release, and that Lane was released.

Appellee further claims that if Lane was released, that did not release Walls from liability on the note; that Lane's release was with the knowledge and consent of Walls, and under a declaration of the payee of the note, that Walls should remain liable upon it.

There was evidence tending to show that Walls at the time knew nothing of Lane's release, and never afterwards consented thereto, from which the jury might have drawn the inference that such were the facts; and as to Wall's release on the note, the demurrer to the evidence could not have been sustained. Indianapolis, etc., R. R. Co. v. McLin, 82 Ind. 435.

The court below must have taken this view of the case, because it gave no personal judgment against Lane or Walls upon the note, and that is equivalent to finding for them as to this question.

The law is well settled that the unconditional release of one or more of joint obligors releases all the joint obligors. Aylesworth v. Brown, 31 Ind. 270. But we do not see that these questions are well presented; appellee has assigned no cross errors; appellant Lane has declined to unite in the appeal, and we do not see that Walls has any right to complain, no personal judgment having been rendered against him on the note.

The remaining question is, did the release of Lane, and the...