Clark v. Dane

McCLELLAN, C. J. For convenience of statement we will assume that the note executed by Dane, Carney, Francis B. Clark and Gaylord B. Clark was for $4,000, and that these were the -only makers. As between them and McIntosh, the payee, they were all principals, of course, and bound severally and jointly for the full amount of the paper. But as among them-, selves each was principal to the extent of $1,000, his share of the joint and several debt, and the others were as to such share sureties, each to the extent of one127 third thereof.—Goodall v. Wentworth, 20 Me. 322; Owen v. McGehee, 61 Ala. 440; Bragg v. Patterson, 85 Ala. 233. Therefore, when Carney and Dane, after they and Gaylord B. Clark had each paid their shares, $1,000, respectively, were coerced further to pay the $1,000 share of Francis B. Clark, the latter was their principal debtor to the amount of said $1,000, and Gay-lord B. Clark was surety upon Francis B. Clark’s indebtedness to Carnjey and Dane to the extent of $333.33 1-3: they had a right of action, in other words, against Francis B. as principal for the $1,000, and against Gaylord B. for one-third of that sum as surety for Francis B. And had Carney and Dane recovered any part of the $1,000 from Francis B., $500 for instance, Gaylord’s liability as surety ¡to them would have been reduced proportionately so as that he would have been bound for one-third only of the balance unrecovered, in the instance given, one-third of ¡the $500 remaining unpaid by Francis B. And so, of ’Course, on full recovery from Francis B. Gaylord would have been free from obligation in the premises. Francis B.’s $1,000 was due to Carney and Dane the moment they paid it for him to McIntosh. They did not, however, prosecute their demand against him to a return of “no property,” or at all; but instead extended two-thirds of the debt for twelve months upon valuable consideration, and in effect, so far as they and he were concerned, released tiie remaining one-third, intending to look to Gaylord B. for the payment of it; and this suit is by Dane against Gaylord B. for the former’s moiety of that one-third. With the exceptions that the amounts are not as we hare stated them, and that there seems to have been a fifth obligor in some form on the note to McIntosh, the foregoing is in substance the case at bar. Dane and Carney had Francis B. Clark to execute four several notes each for one-fourth of Ms share of the original debt, each payable one year after date, and payable respectively to Dane, Oarney, Gaylord B. Clark and to Smith, who was the fifth obligor on the original note, had him to attach to 'each note certain shares of stock fis collateral security and to further secure the same [128] liad him execute a mortgage, maturing twelve months after its date, conveying an interest in certain lands to' McIntosh as trustee for themselves, Gaylord B. Clark and Smith. Gaylord B. -Clark never assented to, or acquiesced in,' or in any way became a party to- or bound by this transaction, but to the contrary expressly rejected it. Bane and Carney by this arrangement disabled themselves to ever proceed against Francis B. Clark except for that part of his debt evidenced by his notes to them respectively, and as to that part they disabled themselves to go upon him for- a year: extended that -part of his debt on valuable consideration for that length of time. On all the authorities this release of their demand against the principal Francis B. Clark in part, coupled with this extension of time for payment of the residue without (the assent of Gaylord B. Clark, the surety to them of Francis B. as to a part of their 'claim, discharged Gaylord B. from all liability to’ them whether Francis B. was insolvent or not, and though the former because of the latter’s insolvency or for other cause may not in fact have been injured by such release- as to a part and extension of time of payment as to the rest of the debt owed by Francis B. Clark to them.—Cox v. Mobile & Girard Railroad Co., 37 Ala. 320; Mobile & Montgomery R'y Co. v. Brewer, 76 Ala. 135; Howle v. Edwards, 97 Ala. 649. Several parts of the court’s general charge to the jury to -which exceptions were reserved, and the charge given at plaintiff’s request are not in line with the foregoing mews. ¡We do not find that plaintiff’s replication to -the third plea, was proved on the trial, as counsel for appellee contend, nor caii we concur with them in the statement that the bill of exceptions does not purport to set out all the evidence. They have overlooked the statement embodied therein at the close of plaintiff’s evidence in rebuttal: “This being all the evidence in the cause, the court charged the jury as follows:” For the errors referred to above the judgment of the circuit court is reversed. The cause will be remanded, Reversed and remanded.