Yerxa v. Ruthruff

• Decision Date: 19 March 1909
• Citation: 120 N.W. 758,19 N.D. 13
• Court: North Dakota Supreme Court

120 N.W. 758

19 N.D. 13

T. E. YERXA v. W. E. RUTHRUFF AND L. L. RUTHRUFF

Supreme Court of North Dakota

March 19, 1909

Appeal from District Court, Cass county; Pollock, J.

Action by T. E. Yerxa v. W. E. Ruthruff and L. L. Ruthruff. Judgment for plaintiff, and L. L. Ruthruff appeals.

Affirmed.

J. W Tilly, for appellant.

Failure to establish claim against solvent principal's estate discharges the surety. Roberts, Thorpe & Co., v Laughlin, 4 N.D. 167, 59 N.W. 967; Stackpole v. D L. & T Co., 10 S.D. 389, 73 N.W. 258; Brown v. Ch. R. I. & P. Ry. Co., 107 N.W. 1024.

Glassford & Lacy, for respondent.

Failure to sue solvent principal at surety's request does not discharge the latter National Bank of South Reading v Sawyer, 59 N.E. 76, 83 Am. St. Rep. 292; Story's Eq. Juris. Sec. 639; Streetor v. Jefferson County National Bank, 147 U.S. 36, 37 L.Ed. 68; Myers v. Farmers State Bank, 74 N.W. 252; Morrison v. Equitable National Bank, 6 Ohio N. P. 7th; Montpelier Bank v. Dixon, 4 Ver. 599; Page v. Webster, 15 Me. 269; Bull v. Allen, 19 Conn. 101; Mahurin v. Pearson, 8 N.H. 539; Abercrombie v. Knox, 3 Ala. 728, 37 Am. Dec. 721; Bank of Maywood v. McAlister, 76 N.W. 552; Tideman on Commercial Paper, Sec. 424; Parsons Notes and Bills, Vol. 1, p. 237, Vol. 2, p. 243; Daniel Neg. Int. Vol. 2, Secs. 1326 and 1339; Ingels et al, v. Sutliff, 36 Kan. 444; Brandt on Suretyship, Vol. 1, Sec. 265.

OPINION

CARMODY, J.

This action was brought by respondent to recover judgment on a promissory note of date January 11, 1902, executed and delivered by defendants to respondent for the sum of $ 300, due October 1, 1902. It appears from the face of the note that the same was executed by defendants to respondent jointly as joint makers. The facts, so far as may be necessary to a decision of the case, are as follows: At the time of the making and delivery of said note to respondent the defendant W. E. Ruthruff and appellant, L. L. Ruthruff, were husband and wife, and lived in the city of Fargo. Defendant W. E. Ruthruff was on said 11th day of January, 1902, indebted to respondent for goods sold and delivered to him by said respondent in the sum of $ 300, and on said date executed the note in question. Appellant, L. L. Ruthruff, who was the wife of the defendant, signed said note with her husband as joint maker, but as surety only, for and as an accommodation party. On the 27th day of June, 1902, defendant W. E. Ruthruff died intestate, leaving an estate in Clay county, Minn., of the appraised value of $ 3,500. Claims were filed against said estate and approved to the amount of $ 2,467.08; and said estate had not at the time of the trial of this action been closed, and no final accounting or report by the administrator had been made. Said estate was probated in the county of Clay and state of Minnesota, and an administrator thereof duly appointed. Notice to creditors to present their claims against said estate was duly given. After said probate proceedings were started, J. W. Tilly, who was then the attorney for appellant, informed Fred Yerxa, who represented the respondent, that the estate of W. E. Ruthruff was being probated in Clay county, Minn., and that there was money or would be money in the estate coming into the hands of the administrator for the payment of debts, and notified him to file the note or claim with the administrator or probate court of Clay county, and that he said he would; but respondent wholly failed and neglected so to do. Appellant paid no part of said note, and it remains wholly unpaid, and did not file the claim against the estate of her codefendant for the amount of said note, or any part thereof. This action was tried in the district court of Cass county before Judge Pollock; a jury having been waived by both parties. At the close of the case the court made its separate findings of fact and conclusions of law, and ordered judgment in favor of the respondent and against the appellant for the amount of the note and interest. A motion for a new trial by appellant was made and denied, and judgment was entered in favor of respondent and against the appellant for the amount due on said note and interest. From the order denying the motion for a new trial, and the said judgment, this appeal was taken.

Appellant cites sections 6105 and 6106 of the Revised Codes of 1905. Section 6106 provides: "A surety has all the rights of a guarantor, whether he becomes personally responsible or not." Section 6105 provides: "A surety is exonerated: (1) In like manner with a guarantor. (2) To the extent to which he is prejudiced by any act of the creditor which would naturally prove injurious to the remedies of the surety or inconsistent with his rights or which lessens his security; or (3) to the extent to which he is prejudiced by an omission of the creditor to do anything when required by the surety which it is his duty to do." She contends that under the provisions of these sections of our Code she is exonerated and discharged as surety on said note for the reason that she was an undoubted surety only, and has been prejudiced by the failure and neglect of the respondent to present said note against the estate of her codefendant, W. E. Ruthruff. In this connection she cites sections 4511, 4513 and 4514 of the Grand Statutes of Minnesota of 1894, which were in force both at the time of the making of said note and the probating of said estate, and which read as follows: Section 4511: "All claims arising upon contracts whether the same be due, not due, or contingent, must be presented to the probate court within the time limited in said order, and any claim not so presented is barred forever." Section 4513: "No claim or demand shall be allowed that is barred by the statute of limitations, nor shall any offset that is barred by the statute of limitations be allowed." Section 4514: "No action at law for the recovery of money only shall be brought in any of the courts in this state against any executor, administrator or guardian upon any claim or demand which may be presented to the probate court except as provided in this Code." She further contends that by reason of the failure of the respondent to present the note as a claim against the estate of her codefendant, as hereinbefore stated, and by reason of the foregoing sections of the Minnesota statutes, if she is obliged to pay this note she will have no redress against the estate of the principal, and can in no way protect herself or recover from any person the amount she may be obliged to pay by reason of the judgment against her on said note in this action.

We are agreed that she was not prejudiced by reason of the failure of the respondent to present his claim against the...