Provines v. Wilder

1. Promissory Note: SURETY: CONSIDERATION FOR EXTENSION: CREDITOR: CO-PARTNERSHIP. The obtention by a creditor of the assets of a firm in payment of the private indebtedness of one of its members, if legally acquired by the consent of all of the members of the firm, might well furnish a valuable consideration for a promise of further extension. 2. -: -: —-•: PLEADING AND PRACTICE. But in order to be available, such fact would have to be pleaded by the party claiming to be released. 3. -: -: -: -: ANSWER. In the case at bar, the answer not only wholly fails to plead such consideration, but alleges in positive terms that the principal debtor on the note was the sole vendor of the machine.

Appeal from Audrain Circuit Court. — Hon. Elliot M. Hughes, Judge. STATEMENT OF THE CASE BY THE COURT. This action is by the administratrix of the indorsee of a promissory note which, together with the credits on its hack, is to-wit: “$250.00 Eehruary 15, 1886. “Twelve months after date I promise to pay to the order of Hiram Wommaek, two hundred and fifty dollars at 10 per cent interest from date, value received. (Signed) “H. L. Ahlfeldt. “B. H. Wilder, Security. “C. A. Wilder, Security.” Upon the reverse side of said note there appears the following : “February 15, 1887. — Paid $25.00 dollars. “February 15, 1888. — Paid $25.00 dollars. “February 28, 1889.- — Paid $25.00 dollars. “February 20, 1890. — Paid $25.00 dollars. “February 21, 1891. — Paid $25.00 dollars. “For value received this note is sold and assigned to Mrs. Kate Brown without recourse in anyway upon the estate of Hiram Wammack or on me. “Louisa Wommack, “Administratrix. “Paid $25.00 March 26, 1892. “Paid $30.90 October 7, 1893.” The defendant Wilder was a surety on said note, which fact he alleges in his answer and claims exoneration on the ground that on the date of the last credit on said note, the then holder, without his knowledge, entered into an agreement with the principal on said note, Ahlfeldt, whereby she extended the time of its payment for one year from the date of said credit, in consideration of the sale to her of a sewing machine by said Ahlfeldt for the sum of said credit, such sum being less than the real or market value of said machine. The reply denied the foregoing allegations of defendant’s answer. In support of the special defense set up in the answer, defendant adduced testimony to the effect that about the date of the last credit on said note, the then holder, Mrs. Kate Brown, went to the store where the principal debtor on said note conducted a hardware business under a co-partnership with his brother, August Ahlfeldt, and “asked him if he couldn’t pay something on that note or pay the note, and he said he didn’t see how he could now, that money matters were very close and he.didn’t see how he could do anything just now; she spoke about wanting to buy a sewing machine, she seen we had sewing machines advertised on the sale bill and she spoke 'to him and asked him if he would let one of those sewing machines go on the payment, that she would buy one, and he said yes he supposed so.” The foregoing testimony was given by the brother and eo-partner of the principal debtor on the note. The witness further stated that he was thereupon appealed to and asked if he would consent to this arrangement; that he replied he would do so, whereupon Mrs. Brown said she would probably buy a machine at the auction sale which was then being conducted by the firm, if.it did not cost her over thirty-one or thirty-two dollars, and would credit .the amount of her bid on the note and extend its payment until next spring; that she did attend the sale on the next day and did bid, being the highest and best bidder, $30.90, as the price for a sewing machine auctioned off at said sale, and that the principal debtor entered the credit of this sum on the note, which was subsequently brought by her for that purpose. There was a verdict and judgment for plaintiff for the balance due on said note, from which defendant appealed. (1) The court erred in refusing the instructions offered by defendant and in giving the instructions offered by the plaintiff, because the proof showed that payment was made out of the property of Ahlfeldt Bros, on the individual debt of H. A. Ahlfeldt, and payment by a stranger, or a third party, of any part of a debt is a valuable consideration and will support a promise to extend. Bishop on Contracts (Enlarged Ed.), sec. 53, and cases there cited; 18 Am. and Eng. Ency. of Law, p. 231, and cases cited. (2) The giving and refusing of said instructions can not be sustained for another reason. The contract by which Mrs. Brown obtained the machine was fully executed and hence, even though not supported by a consideration, will support the promise to extend the time. Bishop on Contracts (Enlarged Ed.), sec. 50; Bishop on Contracts (Enlarged Ed.), secs. 80, 81, etc. The following elements or circumstances must unite in order to constitute an indulgence which will discharge the surety: Eirst. A- consideration, for without it the promise would not be binding. Second. An agreement to indulge, for without it the hands of the creditors are not tied. Third. The agreement must be to' indulge for a definite and fixed time. Eourth. The indulgence must be without the surety’s assent, for if he assents he is a party to it. Fifth. The indulgence must be without reservation of remedy against the surety. Sixth. The agreement must be with a principal and not with a stranger. 2 Daniel on Neg. Inst. (3 Ed.), sec. 1315, p. 330.