Hofheimer v. Losen

Ellison, J. This was a suit begun before a justice-of the peace, for a balance of two hundred dollars and. interest, upon the following acceptance, to-wit: “$271.29. Quincy, Illinois, April 4, 1883. “Four months after date pay to the order of ourselves, two hundred seventy-one 29-100 dollars. Value-received, and charge same to account of H. Hofheimer & Go. “To John Schnarr. Security, B. Losen, Quincy;, Ill.” Across the face of said draft was written the following: “Accepted April 7th. “John Schnarr, “B. Losen, Security.” On the back of said acceptance is an endorsement in words and figures as follows, to-wit: “Amount of Acceptance...............$271.29- “ August 20, 1883, By Cash............ 71.29- ‘ ‘ Balance.........................$200.00 " • Defendant did not file any answer or other formal pleading. There was a judgment for defendant in the justice’s court, from which an appeal was taken to the circuit court of Jackson county, Missouri. In said circuit court the case was tried by a jury. Defendant filed no-formal or special pleadings in the circuit court. The pleadings were the same as in the justice court. ■ [658] Plaintiffs obtained judgment and defendant appeals. Defendant offered to show on the trial, for the purpose of showing a release of the debt, that plaintiffs had •sued him and John Schnarr in a justice’s court in ■Quincy, Illinois, for this debt, In which action they dismissed as to him and took judgment against Schnarr ¡alone, contending that, by the laws of Illinois, the ■situs of the contract, a judgment against one joint debtor is a release' of the other. This .evidence was properly excluded for the reason that there was no proof of the laws of Illinois showing a justice of the peace had jurisdiction of the action. Such jurisdiction, if it exists, would be by force of some statute which should have been offered in evidence. We will presume the common law is in force in Illinois by which one joint debtor may be released by a judgment against another. Illinois, though as a state was never subject to the common law of England, her territory was, and the state is made up of territory belonging to colonies which were so subject. “There is no doubt that the common law is the basis of the laws of those states which were originally colonies of England, or carved out of such colonies. It was imported by the colonists and established so far as it was applicable to their institutions and circumstances, and was claimed by the congress of the United Colonies in 1774 as a branch of those ‘indubitable rights and liberties to which che respective colonies’ were entitled. 1 Kent’s Com., 343. In all the states thus having a common origin, formed from colonies which constituted a part of the same empire, and which recognized the common law as the source of their jurisprudence, it must be presumed that such common law exists — it has been so held in repeated instances. And it rests upon parties who assert a different rule to show that matter by proof.” Norris v. Harris, 15 Cal. 226, 252. This extract from an opinion by Judge Field is undoubtedly the correct [659] rule. Indiana and Illinois have each been recognized in Missouri as states to which this-presumption will apply. Meyer v. McCabe, 78 Mo. 236; Warren v. Lusk, 16 Mo. 102; Houghtaling v. Ball, 19 Mo. 84. In undertaking to follow the last previous ruling of the Supreme Court, as is our constitutional obligation, we have in two previous cases misinterpreted a remark of Hough, J., in the case of Flate v. Mulhall (72 Mo. 522). In that case it is said, “that presumption can only be indulged with reference to those states, which, prior to becoming members of the union, were subject to the laws of England.” In the cases of Crone v. Dawson (19 Mo. App. 214) and Silver v. Railroad (21 Mo. App. 9), we held there was no presumption that the common law was in force in Illinois, and we take this occasion to repudiate • those cases in this respect, as well as the historical error inadvertently stated in the latter case. We announced the correct rule in White v. Chaney (20 Mo. App. 389). But while we will assume what the law of Illinois is as to the release of a joint debtor, we cannot assume that debtor has in fact been released; that must be made out by evidence, and for that purpose the judgment of the justice of the peace was offered. The jurisdiction of a justice of the peace, in civil matters at least, is statutory (Dillard v. Railroad, 58 Mo. 69); and in order to have madp complete his offer of the judgment, ■defendant should have also offered proof of the statute of Illinois, giving a justice of the peace jurisdiction in such cases. II. During the deliberations of the jury they were called in by the court and the instructions which had at first been given them were withdrawn by others substituted in their stead. If any error was committed by the manner in which it was done, the point was not made in the motion for new trial and will, therefore, be considered as abandoned. The instructions finally given by the court, of its [660] own motion, were correct. They declared Losen to be a surety — the theory upon which defendant’s refused instructions were based — and properly submitted to the jury whether he had been discharged by an extension of time, for a consideration, without his consent. III. As a surety, defendant was not entitled to notice of non-payment. I know of no reason why there may not be a surety for an acceptor. The undertaking of the surety here was joint with that of the acceptor. He is an original promisor. His promise is not collateral or dependent upon a distinct consideration from that of the acceptor. His contract is not that of a guarantor. But if it was, it is not such an one as requires notice. As before stated, it 'is an absolute-promise to pay the amount stipulated and the creditor is not bound to use diligence or give notice of non-payment. <;But where the guaranty is, that the creditor himself shall be able to collect the debt of some third person, then it is incumbent upon the creditor to use diligence, and to give reasonable notice of non-payment. This is in accordance with the long established rule of the common law. If I undertake for the act of some-third person, I am not entitled to notice of his default,, before suit brought; but if I undertake directly your act or success, I am entitled to notice of your failure, for this is a fact peculiarly within your knowledge.” Train v. Jones, 11 Vermont, 444; Peck v. Barney, 13 Vermont, 93. To the same effect are the cases of Davis v. Jones, 61 Mo. 409, and The Singer Mfg. Co. v. Hester, 71 Mo. 91. We see nothing in the other objections presented requiring a reversal and affirm the judgment. All concur.