Warren v. Fant's Trustee

• Decision Date: 13 December 1879
• Citation: 79 Ky. 1
• Parties: Warren, & c., v. Fant's trustee.
• Court: Kentucky Court of Appeals

79 Ky. 1

Warren, & c., v. Fant's trustee.

Court of Appeals of Kentucky.

December 13, 1879

1. When a surety has been discharged from legal liability upon a written obligation, by its alteration without his consent, a subsequent promise by him to pay is not binding, unless made upon some new consideration.

2. Words added upon the margin of an obligation, and above the signatures of the obligors, by an arrangement between the obligee and principal obligor, after the delivery of the writing, are to be deemed a part of the obligation, and, if added without the consent of the sureties, and their liability is thereby increased, they are released.

APPEAL FROM WARREN COURT OF COMMON PLEAS.

HALSELL & MITCHELL FOR APPELLANTS.

1. The addition to the writing sued on was a " material alteration," which released the sureties. The words added are a part of the obligation, although written on the margin. (Daniel on Negotiable Instruments, secs. 149, 1373 and 1375; Woodworth v. Bank of America, 19 Johnson 391; Lisle v. Rogers, 18 B. M., 538.)

2. The effect of the alteration was to render the note utterly void as to the sureties, from the instant it was made, and the subsequent promise to pay, if one was made, was without consideration, and, therefore, not binding. (Cotton v Edwards, 2 Dana, 106; Blakey v. Johnson, 13 Bush, 202; Emmons v. Overton, 18 B. M., 650; Peabody v. Harvey, 4 Conn. 119; Huntingdon v Harvey, 4 Conn. 124.)

3. The court having directed the jury to find specially, it was error to give any instructions. (Civil Code, secs. 317 and 327.)

BUSH & PORTER FOR APPELLEE.

1. Even if the court erred in giving and refusing instructions, appellants were not prejudiced, as the jury did not return a general verdict, and the instructions could not have affected the special findings.

2. The jury having found that appellant ratified the alteration of the contract, the court acted properly in rendering judgment for appellee.

3. The marginal indorsement upon the obligation was a new agreement, and not an alteration of the original contract; and therefore the sureties were not released. (Jones v. Alexander, & c., MS. Op., Dec. 5, 1876; 3 Bibb, 10; Ibid, 360; 4 Bibb, 292; Ibid, 300.)

H. T. CLARK FOR APPELLEE.

Brief not with record.

OPINION

COFER JUDGE:

The reply admitted that the words on the margin of the obligation sued upon were written at the suggestion of the appellee, in the absence of the sureties, and by implication at least, without their knowledge or consent.

Those words, if taken to be a part of the note, increased the liability of the sureties, and released them, unless they are bound by subsequent ratification or promise to pay.

The words added were written on the face of the paper which contained the obligation, and above the signatures of the obligors; they were put there at the instance of the obligee to secure a benefit that would not have been secured without them; the appellee insisted that the sureties were bound by them, refused to accept what he would have been entitled to without them, and in his original petition declared on them as a part of the writing.

This is sufficient to show that the appellee regarded them as a part of the obligation, and that they are to be so regarded is abundantly established by authority. (Daniel on Negotiable Instruments, sec. 149, et seq. )

That the words in the margin were written after the obligation was delivered being admitted, and the jury having found that Warren promised to pay the debt after he was informed that the addition had been made, the question for decision is, whether such promise renders him liable on the obligation as if the addition had been made before he signed, or afterward with his consent.

He was merely a surety, and we think it clear that no subsequent ratification of the addition, or promise to pay the debt, can bind him, unless made upon some new consideration.

That he was not bound during the time that elapsed between the making of the...