Pence v. Gale

*259 By the Court.

Berry, J.

I. The appellant tabes the position that the dismissal of the proceedings in bankruptcy against B. E. Mitchell, and the restoration of his property to him at the request of plaintiffs, (among other creditors,) were, in effect, a release of collateral security for the note upon which the action is brought, and upon which he, (the appellant,) is surety. His claim is, that this release operates to discharge his liability upon the note. For the purposes of this case it may be admitted, (without inquiry,) that the effect of the dismissal of proceedings, etc., was to release collateral security, as contended by appellant. Such release, however, does not discharge the appellant, if it was given at his instance, and with his consent. Willis vs. Davis, 3 Minn. 17 ; 3 Lead. Cas. in Eq. (3d Am. Ed.) 562, and cases cited; 2 Am. Lead. Cas. (4th Ed.) 343, 413, and cases cited. Upon a careful perusal of the testimony reported in the case, we are of opinion that the jury were at liberty to find, (as they appear to have done,) that the acts of the plaintiffs in procuring the dismissal of the proceedings in bankruptcy, and the restoration of his property to the bankrupt, were performed with the consent and at the request of appellant, and that, such consent and request were absolute and not subject to any condition. If the jury were right in this conclusion of fact, (as must be presumed,) the alleged release did not operate to discharge the appellant, and furnishes no defense to this action.

II. The verdict being for the whole amount of the note and interest, the instruction given to the jury, “ that the plaintiff, in any event, was entitled to recover fifty per cent, of the amount of the note and interest,” possesses no practical importance.

III. The court, among other things not reported in the settled case, instructed the jury, “ that as it was defendant’s (appellant’s) duty to be diligent in matters touching his own *260 interests, and when the proceedings were going on for the release from bankruptcy, if he took no steps which he might have taken to have the Morrison note procured, or otherwise to protect himself, he cannot complain of a result he might easily have prevented, unless misled by the plaintiff.”

As the verdict is manifestly based upon the idea, that the dismissal of the bankruptcy proceedings, and the return of the bankrupt’s property were upon the absolute and unconditioned consent and request of appellant, and as there is nothing in the case to show that the plaintiffs undertook or agreed, either expressly or by implication, to procure the Morrison note, or to do any thing else to protect the appellant, (whatever that may mean,) and as it is to be presumed that the law was in other respects correctly given to the jury, no error is apparent in this instruction of which the appellant has any just reason to complain.

Order denying a new trial affirmed.