Hofheimer v. Losen

1. Practice — Evidence — Proof of Laws of Another State— Case Adjudged.— It is not competent, for the purpose of showing a release of a debt sued upon in this state to prove that defendant had been sued jointly with another in a justice’s court in thestateof Illinois, and the suit dismissed as to defendant; on the assumption that a judgment against one joint debtor is a release of the other ; unless proof is made of the laws of Illinois, showing that a justice of the peace had jurisdiction of the action. Such jurisdiction, if it exists, would be by force of some statute which must be offered in evidence.- The fast of release must be made out by evidence, and the fact of jurisdiction is part of the proof. 3. - Error not Set up in New Trial. — Where error is not complained of in the motion for new trial, it .will be considered as abandoned. 8. Principal and Surety — Notice.—A surety is not entitled to notice of non-payment. He is an original promisor. His contract is not that of a guarantor ; it is an absolute promise to pay the amount stipulated, and the creditor is not bound to use diligenc.e or give notice of non-payment.

Appeal from Jackson Circuit Court, Hon. F. M. Black, Judge. The case is stated in tlie opinion, I. Tire court erred in admitting tkat portion of tke deposition of S. Hofkeimer objected to at tke trial. Wketker plaintiff intended by kis agreement witk Scknarr, tke acceptor, to release defendant was a legal conclusion. II. Tke court erred in rejecting tke transcript of tke record and deposition of Wm. Lockwood. If appellant was a joint' maker or acceptor .of tke draft, and a citizen of Illinois at tkat time, ke skould have been made a party to tke suit. Tke testimony skowing, tkat appellant was a citizen of Illinois, and tke judgment being only against Scknarr, and dismissed as to appellant, ’ tkere was a merger of tke cause of action against appellant. Wiley v. Holmes, 28 Mo. 286. III. Tke court erred in its instructions in bekalf of respondent. Tkey ignored tke question of notice of ■non-payment, to which appellant was entitled. 1 Parsons on Notes and Bills (Ed. 1873) chapter 11, pages 353, 354, 355 and 356; Story on Promissory Notes, {7 Ed.) 210 ; Commercial Bank of Albany v. Hughes, 17 Wend. 94. IV. The word “ security ” after appellant’s name' across the face of the draft made his liability the same as an endorser. 1 Wait’s Actions and Defenses, page 622. Respondent failing to show notice and non-payment, appellant is released, unless respondent has shown affirmatively that appellant was not injured thereby. Commercial Bank óf Albany v. Hughes, 17 Wend. 94. Y. Appellant’s instructions, refused by the court, were the law. State to use of Mueller's Adm'r etc. n. Manning and Schlender, 55 Mo. 142; Prior v. Eiso, 81 Mo. 241. ' I. There was no admission of illegal evidence offered by plaintiff. The evidence complained of was ruled out upon objection. Besides there was no assignment of error upon motion for new trial. Cowen ■». Railroad, 48 Mo. 556 ; Gordon v. Gordon, 13 Mo. 216; Powers r>. Allen, 14 Mo. 369. II. The second error assigned by appellant relates to the exclusion by the trial court of a transcript of a judgment rendered by some person in the county of Adams, state of Illinois, claiming to be a justice of the peace, and also the deposition attached to said judgment transcript of one Lockwood, ideotifying said transcript. There was no evidence of any kind offered to show the existence of any such thing as a justice of the peace in the state of Illinois. There was no competent evidence that said Lockwood was a justice of the peace, nor that he had jurisdiction to render said judgment. These are facts to be proved. There was no proof or offer to prove that the Schnarr against whom the judgment was rendered, to which said transcript related, was -the same Schnarr who was the principal acceptor upon the draft sued upon. There was no proof of the Illinois law. The said transcript was not properly certified, being a judgment in another state, even if all the other requisite matters had been satisfactorily proven. Ticknor v. Voorheis, 46 Mo. 110, 111; Thomas v. Robinson, 3 Wend. 267, 268, 26,9 ; Betts v. Bagley, 12 Pick. 572, 581; Abbott’s Trial Evidence, page 549, par. 27; 1 Greenleaf on Evid. (Red. Ed.) par. 486, note 1 and •cases cited ; 1 Greenleaf Evid. (Red. Ed.) sect. 488 ; Rev. •Stat. U. S. (1878 Ed.) Title xm. chap. 17, sect 906. III. The transcript of judgment was not competent under the pleadings. To make it competent a special pleading was required, settingvforth a discharge of defendant by way of merger on account of a separate judgment against one acceptor. This could not be :shown upon a plea which goes to the merits simply, as •does the general issue, which was the plea made by defendant. Banlc v. Williamson, 61 Mo. 259; Reed v. Snodgrass, 55 Mo. 180 ; Schergers r. Wetzell, 12 Mo. App. 596. There is nothing in the record to show, and there was no offer to prove, that defendant Losen was a ■citizen of Illinois at the time of the judgment against Schnarr. Appellant is wrong in stating the contrary. The third assignment of error by appellant is entirely without ground to stand upon. IY. The record discloses no instructions at all asked Ly respondents, and none were given in their behalf. Again there is no objection preserved in the motion for :a new trial, to the giving of instructions in behalf of respondents. Qowen n. Railroad, 48 Mo. 556 ; Gordon v. Gordon, 13 Mo. 215, 216; Powers *. Allen, 14 Mo. 367, 369, 370. Y. The original instruction given by the court of its own motion did not ignore the question of notice of non-payment. There was no such question in the case. There was no such issue made by the pleadings as required an instruction concerning notice of non-payment. There was no such defence pleaded as a discharge" by-reason of omission to give notice of non-payment. Nor could such a defence be made under a plea which tendered the general issue as did defendant’s plea. No-allegation of notice of non-payment was necessary to-support plaintiff’s case. The issues made by the pleadings cannot be changed by instructions. Northup v. Ins. Co., 47 Mo. 435; Nelson ». Brodhack, 44 Mo. 596 ; Bates v. Hinton, 4 Mo. 78 ; Cable v. McDaniel, 33-Mo. 363 ; Adams v. Trigg, 37 Mo. 143 ; Darreit v. Donnelly, 38 Mo. 492 ; Glass v. Gelvin, 80 Mo. 303. The-undertaking of defendant was absolute that the acceptance should be paid. Hence no notice to him of nonpayment was necessary. Transp. Co. v. Jones, 11 Yt. 444; Peck r>. Barney, 13 Yt. 93; Allen n. Pightman, 20 Johnson (N. Y.) 363. YI. There was no error in refusing to give appellant’s instructions numbered one and two. There was-no evidence of any agreement in writing to extend the time of payment. The other matters embraced in said instructions had been already fully covered and fairly presented in the instructions given by the court of its-own motion. Cooper v. Johnson, 80 Mo. 483, 491. YII. Referring to appellant’s fifth assignment of error, a reference to the record will disclose that there is nothing to show that the recalling of the jury and giving further instructions by the court, took place in the absence of counsel. No objection of this kind was preserved in the motion for a new trial, and it cannot be entertained now. The record, however, shows that appellant’s-counsel was present at the time the jury were recalled, and excepted to the giving of the new instructions. There was no error in this action of the court. Scott v. Haynes, 12 Mo. App. 596, 597; State v. Pitts, 11 Iowa, 343; Hogg v. State, 7 Ind. 551. YIII. The questions of whether there was an extension of the time of payment for a definite period, of the acceptance sued upon, without the consent of defendant* and whether there was any consideration for such extensions, or whether it was amere indulgence, a gratuity,., were all properly submitted to the jury, and under the-instructions must have been found for plaintiffs.