Donnerberg v. Oppenheimer

The opinion of the court was delivered by Scott, J. One Winnie executed a note to Solomon Oppenheimer, and said Oppenheimer and E. J. Brickell guaranteed the payment of the note, waiving demand, protest, etc., by a written guaranty upon the back thereof, and Oppenheimer, before the maturity, sold the note to one Dekum, and it was thereafter transferred.several times and was finally purchased by the plaintiff, who brought this action upon the guaranty against the representatives of said guarantors, they both having died, to collect a balance due upon the note. There is no controversy as to the facts in the case. Oppenheimer’s estate had been duly settled through the probate court and the claim not having been pre [292] sented, the court held that said estate was not liable. Brickell, by his will, appointed the appellants, Newport, Dyer and Cheney, as trustees of his property, directing them to manage and settle the estate.without the intervention of the court. The will was proven and said trustees were managing and settling the estate without the intervention of the probate court at the time of bringing this action. No notice to present claims against said estate was published. It was agreed also that Oppenheimer was principal in said guaranty and that Brickell was surety. Appellants’ first contention is that plaintiffs cause of action was barred in consequence of a failure to present the note for payment within one year after they qualified as trustees of Brickell’s estate. They contend that the statute requires claims to be presented against estates being settled in such a manner, as well as those regularly administered or settled in the probate court. But conceding this for the purposes of this case only, and not deciding it, it would also have been necessary for the trustees to have published a notice to present claims and not having done so, it would not be barred by any failure to present it. It further appears that the note was presented for payment after the expiration of one year and that payment was refused and that the action was not brought until some four mouths after such presentation, and appellants contend that the plaintiff cannot recover (1) because there was no affidavit of the justness of the claim, etc., and (2) in consequence of the delay in bringing the suit. But appellants stipulated that prior to the commencement of the action plaintiff had duly presented said note and demanded payment, and therefore cannot now raise the objection [293] that there was no affidavit as to the justness of the claim. Nor is the position, in regard to the delay in bringing the action, well taken, for there was no obligation upon the plaintiff to present the note at all as said above. It is next contended that the plaintiff took the note subject to all defenses, and that the guaranty was executed some time after the execution of the note and was executed by Brickell without any consideration, etc., and that the complaint alleges that the plaintiff obtained the note by assignment and that no endorsement of the note was pleaded or proven. It appears, however, that the note had been transferred, before its maturity, to several parties other than the plaintiff, who were holders in good faith and for value, and the plaintiff, although obtaining the note after maturity, would take as good a title thereto and stand in as good a position as such prior holders. Bank of Sonoma County v. Gove, 63 Cal. 355 (49 Am. Rep. 92); 1 Daniel, Neg. Instruments, §726 a. As to the transfer of the note by endorsement, the written guaranty was set forth in full as being upon the back of the note and signed by the guarantors, and under the authorities this constituted an endorsement of the note with an enlarged liability. Robinson v. Lair, 31 Iowa, 9; Heard v. Bank, 8 Neb. 10; Crosby v. Roub, 16 Wis. 616 (84 Am. Dec. 720); Heaton v. Hulbert, 3 Scam. 489. It is further contended that the guaranty being joint, the release of one joint obligor released the other, and that the release of the principal discharged the surety, and as the Oppenheimer estate had been released, the effect of it was to release the Brickell estate also. But this rule only applies where the discharge is brought about by some affirmative act upon [294] the part of the creditor and there was none in this case; all that is claimed is a failure to present the note against the Oppenheimer estate. Dye v. Dye, 21 Ohio St. 86 (8 Am. Rep. 40); Gage v. Bank, 79 Ill 62; Davis v. Graham, 29 Iowa, 514; Darby v. Bank, 97 Ala. 643 (11 South, 881); 2 Daniel on Neg. Inst. § 1339. It is next urged that when the surety dies and the principal survives, that the surety’s estate is absolutely discharged, and the survivor only is liable. But this is not so under our statutes (Code Proc., §§704, 1042), which provide that in certain cases, which would include this one, where actions could have- been maintained against the party if living, that the same may be prosecuted against his representatives. Finding no error, the judgment is affirmed. Hoyt, C. J., and Dunbar, Anders and Gordon, JJ., concur.