Burge v. Duden

SMITH, P. J. This is an action which was brought by plaintiff against defendant on a promissory note for $600 payable to the order of the former’s intestate one [10] year after the date thereof, to-wit, December 5, 1894, at the “Banking House of Salmon & Salmon, Clinton, Mo.” The note was executed by defendant and one Elges who was not joined as a defendant. The answer of defendant Duden admitted the execution of the note sued on and alleged (1) that defendant was merely the surety on said note and so known to be by the payee therein, the plaintiff’s intestate; (2) that Elges at the time of the execution of said note and for several years thereafter was solvent; (3) that the residence of defendant was at all times well known to the payee of said note; (4) that defendant did not know at the date of said note, nor until the year 1901 the post-office address of the payee therein; (5) that in 1897 he was informed by Elges that said note had been paid; (6) that if defendant had been advised that said note had not been paid when it became due he could have protected himself; (7) that he did not know until 1901 that said note had not been paid and that at about that time said Elges became insolvent; (8) that plaintiff for these reasons was estopped to maintain this action against him, defendant. The conclusion of the answer was, that “defendant denies each other allegation contained in the petition. ’ ’ The trial court, on motion of the plaintiff for that purpose, gave judgment on the pleadings. The defendant appealed. The facts pleaded by the answer manifestly constitute no defense to the plaintiff’s action. The statute put it in the power of defendant to require the payee of said note to bring suit thereon and provided that if such requirement be not complied with that he be exonerated from liability thereon to the payee. R. S., secs. 4500, 4501, 4502. The answer alleges that the defendant did not know the name of the payee of the note. Having presumably read it before he signed it he could not be heard to claim ignorance of the name of the payee therein. [11] He could no doubt have ascertained the postoffice address of the payee had -he inquired at the bank where the note was payable. No diligence is alleged to have been exercised by him in endeavoring to ascertain this fact. But, however all this may be, it is manifest that to sustain such a defense — to permit a surety on a negotiable note to become exonerated from his liability thereon upon any such grounds — would be to strike down the commercial value of all bills, bonds, notes and other securities. The statute, as we have seen, provides for the exoneration of sureties from liability on such instruments and this is most generally the only way it can be accomplished. The passivity of the payee in the note did not have the effect to exonerate the defendant as surety. 2 Daniel on Neg. Inst., sec. 1339; Russell v. Brown, 21 Mo. App. 51. Until he received the statutory notice to sue he could remain passive. Nothing was required of him to keep alive his security. The plaintiff’s right of action in his representative capacity is not put in issue by the answer. It stands impliedly admitted. The statute expressly enjoins that we shall not reverse the judgment of any court unless we shall believe that error has been committed materially affecting the merits of the action. In view of the admission and allegations of the the answer we can not say that the trial court by its judgment has committed error materially affecting the merits of the action. The judgment is so clearly for the right party that it must be affirmed. All concur.