Corbyn v. Brokmeyer

SMITH, P. J.

On January 10, 1883, one Charles Wassman executed his negotiable promissory note to August Schnedler for five hundred dollars, due two years after the-date thereof, bearing eight per cent interest to be compounded. It stands admitted by the defendant’s answer that Schnedler, the payee, offered to sell said note to plaintiff and' that the defendant on November 19, 1883, at the request and for the accommodation of said payee, and in consideration of' the purchase thereof by plaintiff, did indorse his name upon the back of said note; and that thereafter the said payee transferred and delivered said note to plaintiff for value-received of her, and that she was the owner thereof.

There was evidence adduced tending to prove the allegation in the second count in the petition to the effect that in March, 1899, plaintiff presented said note to defendant- and demanded payment thereof; and that he then and there promised and agreed to pay the same and the interest thereon, if the plaintiff would not then sue him thereon. It further appears that this suit was not brought until August 12, 1899, which was several months after such promise of *652 payment was made by defendant, and not until after tbe defendant had repudiated such new promise.

It does not appear that any payment whatever was made upon said note by the maker thereof. It was shown, however, that the interest for several years was paid to plaintiff’s agent by the payee and indorser,' and this is relied upon by plaintiff to take the case out of the statute of limitations. There was no evidence whatever that defendant ever made any payment upon the note, or authorized any to be made, or that he knew that this obligation was outstanding until a short time before this action was begun. The answer pleaded in bar of the action, -the ten years’ statute of limitation.

The case was tried by the court without a jury, and at the conclusion of the testimony, a declaration of law, asked by defendant, that under the evidence plaintiff could not recover, was given, and a further declaration, that payments made upon the note by the indorser, Schnedler, would not stop the running of the statute of limitations as to the defendant, Brokmeyer. Judgment was entered for defendant, and plaintiff has brought the case here.

The defendant, it seems, wrote his name on the back of the note after its execution and delivery to the payee therein, and he thereby became a guarantor. This was not a joint obligation but a separate, distinct and independent engagement of the defendant’s own. Goode v. Jones, 9 Mo. 876 ; Stagg v. Linnenfelser, 59 Mo. 336 ; Parmerlee v. Williams, 71 Mo. 410 ; Burnham v. Gosnell, 47 Mo. App. 637 ; Adams v. Huggins, 73 Mo. App. 140 and 78 Mo. App. 219 . The payee’s obligation was but that of an indorser. Twogood v. Cooper, 9 Iowa 415 . A guarantor is neither an indorser nor surety. The payee’s obligation was therefore separate and distinct from that of the defendant guarantor. Graham v. Ringo, 67 Mo. 324 ; Bank v. Shine, 48 Mo. 464 ; Killian v. *653 Ashley, 24 Ark. 511 ; Gains v. Bank, 84 Ill. 42 ; 14 Am. and Eng. Ency. of Law [2 Ed.], 1130, note 2; also 1129, par. 2; Parsons on Bills and Notes, 117.

Payment upon a note by the maker or indorser will not stop the running of the statute of limitations as to a guarantor. And so when reliance is placed upon a partial payment to take a case out of the statute óf limitations it must appear that such payment was made by the defendant, or by a party who is jointly bound with him upon the same contract. It is not sufficient that the contracts may be connected with or grow out of the same negotiable instrument, but there must be a joint liability upon the identical contract. R. S. 1889, sec. 6794; Maddox v. Duncan, 143 Mo. 613 , and cases there cited. It results from these considerations that the payment of interest by the payee and indorser did not have the effect to arrest the operation of the statute as to the defendant guarantor.

But it is not controverted that after an action on the guaranty was barred by the ten years’ statute of limitations the defendant promised the plaintiff that if she would not then'sue that he would pay the note. “Forbearance to sue is one of the commonest examples of valuable consideration to be found in the common-law reports.” “From time immemorial, an agreement to forbear to sue has been held to be a valuable and sufficient consideration.” Bridges v. Stephens, 132 Mo. loc. cit. 543; Glasscock v. Glasscock, 66 Mo. 627 ; Salisbury v. Renick, 44 Mo. 554 ; Hill v. Railway, 82 Mo. App. 188 . But a forbearance to sue can not constitute a valuable consideration for the promise, if the right of action —the right to maintain the suit, no longer exists. By the delay by the forbearance the promisee in such case surrenders no existing right and suffers no detriment of any kind' in consequence thereof.

It follows that in no view of the case which we are *654 able to take can we discover that tbe plaintiff was entitled to go to tbe tbe jury on tbe evidence, and therefore tbe action of tbe lower court must be upheld. Judgment affirmed.

Ellison, J., concurs; Gill, J., absent.