O'Howell v. Kirk

Smith, P. J. This was an action begun in the probate court wherein plaintiff presented for allowance against the estate of defendant’s testator a demand founded on a promissory note for $912.55, dated January 20, 1887, due twelve months after date, which was executed by John B. Thompson and the defendant’s testator. The case was removed by appeal to the circuit court where there was a trial at which evidence was adduced tending to show that the testator wag the surety of Thompson, the other maker of the note ; that the defendant as executor of the testator’s estate had caused notice to be served on the plaintiff requiring him to commence suit forthwith on said note against Thompson and himself as such executor; and that the plaintiff had failed to bring said suit on said note within thirty days after the service of the notice requiring him so to do. There was other evidence not material for the purpose of the consideration of the question presented for decision. The plaintiff asked these instructions, to-wit: “1. The notice in evidence requiring O’Howell to commence suit, and his failure to do so within thirty days after the service of said notice, do not have the effect to discharge the estate of William Kirk. “2. Thompson and Kirk,were held by the note in suit as principals unless it was agreed between them [527] at the time the note was signed that Kirk signed the same as security, and unless it appears in evidence that there was such agreement, and that plaintiff had notice thereof at the time he received the note and parted with his money, the finding and judgment should be for the plaintiff.” These were by the court'refused. The finding of the court, to which the cause was submitted without the intervention of a jury, was for the defendant. Judgment was rendered accordingly and from which plaintiff appeals. I. The decisive question here presented is whether the defendant Kirk, who was executor of the estate of William Kirk, deceased, could protect the estate of his testator from the note which he had jointly made with Thompson to the plaintiff by giving the notice provided by sections 3896-7, Revised Statutes, 1879. This case was tried before the court, a jury having been dispensed with. The questions of fact passed upon by it are incontrovertible here, This court has only the power to review the law declared by it. Swayze v. McBride, 34 Mo. App. 414; Gains v. Fender, 82 Mo. 509. Assuming then as we must that the defendant’s testator signed the note in question as surety, the single question remaining is, whether the statute which provides that “any person” bound as surety for another in any bond for the payment of money,” etc., includes the executor of an estate of a deceased who had signed a note as surety in his lifetime. This is largely a question of statutory construction. The words “any person” undoubtedly refer only to that class of persons who are bound as surety for another on bond, bill or note, etc. Is an executor, under such circumstances as the present, embraced in these terms % This statute, like others of similar import, should be construed so as to make it reasonable, practicable and just in its application. Sisk v. Rosenberger, 82 Mo. 46. An executor under the law is a trustee who receives [528] everything for the use of others. His ownership of the personal property of his testator is, under our statute, but a qualified or limited one. Chandler v. Stevenson, 68 Mo. 450; Stagg v. Lennenfelser, 59 Mo. 336; Stagg v. Gunn, 47 Mo. 500; Bouggley v. Teichman, 10 Mo. App. 257. If the testator had been living at the time of the service of the notice in this case and had given it to the payee in said note, there could be no question that his neglect to bring the suit would have had the legal effect to have discharged the testator from his liability as surety on the nóte. Having in view the rule of construction which has just been quoted, why is not the representative of the testator clothed with the same statutory power as the testator would be, were he living, in respect to a matter of this kind ? Is it not reasonable, practicable and just that it should be so ? We have made quite an extended examination of the books, and have been unable to find any authority either in those cases where, under the old practice, courts of chancery, proceeding in analogy to certain writs of the common law, denominated writs of prevention, granted, as was their custom, relief to a surety on his application for that purpose by bill of guia timet, nor in those when the exoneration of the surety was accomplished by a direct statutory method, which lends countenance to the contention of the plaintiff. His construction of the statutory words, “any person,” is too narrow and restrictive to be reasonable. To illustrate the unreasonableness of the construction of the statute for which plaintiff contends, let us suppose an executor’s testator had become surety on a note which did not fall due until after his death, and that, after it had become due, the payee took no steps to collect the same, though the amount of it is nearly or quite equal to the value of the testator’s entire estate and though the principal is wasting and squandering his property and is likely to ultimately become insolvent, so that the testator’s [529] estate will have the whole note to pay, does the statute confer upon the executor no power to protect his testator’s estate in such case by giving the holder of the note the notice provided in sections 3896 and 3897, and thus compel him to bring the suit against the principal or to exonerate the testator’s estate ? Surely the legislature never intended by this statute to leave an executor in this helpless condition. The case of Hickam v. Hollingsworth, 17 Mo. 475, was where the principal himself in the note had died, and the reasons for the ruling in that case do not exist in a case like the present where the surety is dead; so that case is not a controlling authority in this. II. As to the question whether the testator bore the relation of a surety to Thompson in the note sued on, it may be observed that this fact might have been shown in two ways: First. By the instrument itself, and, second, by evidence aliunde that the relation did so exist. Brandt on Sure. & Guar., sec. 18; Garrett v. Ferguson, Adm'r, 9 Mo. 125; Scott v. Baily, 23 Mo. 140; German Sav. Ass'n v. Helmick, 57 Mo. 100. But, as has already been said, this was a question of fact which was passed upon by the trial judge, whose finding is conclusive upon us. But it is contended that, though it did appear by extrinsic evidence that the defendant’s testator was, in fact, the surety of Thompson, yet, that unless the plaintiff had notice thereof at the time he received the note and parted with his money, that such suretyship was immaterial. It was sufficient, for the purpose of this remedy, that the plaintiff had notice of the relation which the testator sustained to Thompson in respect to the note at the time he was served with the notice to bring the suit. He had knowledge of this fact from and after the service of the notice to sue, which was timely and sufficient. Brandt on Sure. & Guar., secs. 17-19; Munoy v. Graham, 29 Iowa, 520; Neal v. Harding, 2 Metcalf, 247. The [530] absolute liability of the surety after notice becomes conditional, but the holder may restore the obligation of the surety to its absolute quality by the proceeding the statute requires, or he may take issue upon the fact of the suretyship of the notifying obligor. Peters v. Lindenschimidt, 58 Mo. 464. It is thus made to appear that the circuit court did not err in rejecting the theories embraced in the instructions asked by plaintiff. The judgment of the circuit court, with the concurrence of the other judges, is affirmed.