Burrus v. Davis

Gill, J. This is a suit on a promissory note for $100 dated at Blue Springs, Missouri, September 1, 1888, due eight months after date, payable to the order of J. M. Burrus, and originally signed by G. M. Davis' and one-W. H. Jones. As shown by credits on the-note, Davis, the principal, paid the interest yearly to-September 1, 1892. When the note matured, Jones refused to stand longer as security; and as Davis-desired to continue the loan, he applied to Burrus for' leave to retain the money by substituting another surety. Burrus consented and it was thereupon agreed between Davis, Burrus, and Walker that the latter should be taken as security in place of Jones, who was-to be discharged. In place, then, of making out a new note, the parties concluded to, and did, retain the old paper; struck out the name of Jones by running a pen through it; Walker wrote his name at the bottom of the note; and in that condition it was left with Burrus. This was all done while the three parties — Davis, Burrus, and Walker — were together, and with the express understanding that the loan was permitted to continuo on the assumption that Jones was discharged as security and Walker taken in his stead. After paying a few years’ interest, Davis left the state, leaving the note unpaid. Burrus, the payee, died, and his execu [213] trix brought this action, which, on a trial by the court, without the aid of a jury, resulted in a finding and .judgment for plaintiff, and defendant appealed. There is no merit in the defense to this action, and the judgment below, which was for the plaintiff, must be affirmed. The learned counsel for defendant seems to rely on the rule announced in McMahan v. Geiger, 73 Mo. 145, to the effect that where one signs a note after delivery, and after the consideration between the ■original parties had passed, the obligation, as to said .subsequent signer, is a mere nudum pactum and can not be enforced. And this is unquestionably the correct doctrine. It has for its support the well known principle of the law of contracts that, to make a binding promise, there must exist at the time a good-or valuable consideration therefor. But the facts in this case •differ materially from those of the McMahan case, above cited; and the difference is sufficient, too, to take it out of the operation of the legal principle there enforced. In that case O’Day loaned a sum of money to Creighton, on the faith of a note executed by Creighton and McMahan. Two months thereafter Geiger, without any consideration whatever, voluntarily added his signature to the instrument. It was there held that Geiger was not- legally bound on the note, because when he signed, the consideration had already passed, and there was no new consideration present at the time he affixed his signature. But in the case in hand there was a new consideration present ■at the time and which prompted Walker to sign the note. Jones, the former surety, was asking to be Released from the Davis note; he declined to let the matter continue in its then present shape, and as Davis wished to retain the money longer, it was agreed that ■Jones should be discharged and Walker would assume the obligation as Davis’ security in his, Jones’, place. [214] This was ample consideration to support the new promise made by Walker. It was, in effect, the entering into a new contract, a new engagement, by Davis and Walker, for and in consideration of the satisfaction of the old one. In substance, the ease stands the-same as if a new note had been written up and signed by Davis and Walker and the old one taken up and. destroyed. On this state of facts, then, ' Walker’s liability became fixed by the terms of the note — that is, to pay the amount of money therein named, if Davis, his-principal, did not. He became an original promisor and debtor to Burrus, and was bound to know every default of his principal. 1 Brandt on Sur. & Guar. [2 Ed.], sec. 1. Nor was he entitled to notice of Davis’ delinquency. Barker v. Scudder, 56 Mo. 272. It is further claimed that even admitting that. Walker became surety on the note, he was discharged by reason of an extension of time in the payment, thereof. This contention is sufficiently answered by quoting from Judge Smith in the case of Aultman & Taylor Co. v. Smith (52 Mo. App. 357): “There is. no rule of law more firmly settled in this state than, that, where the surety claims to have been discharged,, by reason of an agreement between the creditor and principal debtor, extending the time of payment, it must appear that the agreement was upon a valuable-consideration and that the extension was for a definite period of time.” Mere indulgence which the creditor may extend to the principal debtor will not discharge-the surety; it must appear that the creditor has so-bound himself in an agreement with the principal debtor that he can not, for a definite time, enforce the* payment of the note. There is no evidence here even tending to prove any such extension of time. Davis-seems to have paid the interest on the note from year [215] to year, and that is all. There was, according to the testimony, no period of time during the running of the note, when Burrus, the payee, was barred from enforcing its payment. It seems that on the day the' evidence was taken, the plaintiff failed to make formal proof of her appointment and qualification as executrix of her husband’s estate. The court took the case under advisement, and on a subsequent day, when the judgment was announced, plaintiff’s counsel offered the letters of administration and the court, over defendant’s objection, admitted them. Defendant’s counsel has presented this as an error calling for a reversal. It is claimed that the offer came too late — that the evidence had long since been closed. Even conceding that it was error to receive the evidence complained of, because out of time, it was clearly not prejudicial error, or such as would warrant a reversal. If the defendant was prejudiced by the introduction of the letters at so late a date, then he should be able to point out the harmful nature of the error. In the absence of such showing, we assume that no injustice was done by the court’s ruling. Judgment affirmed. All concur.