Gilman, Bentley & Co. v. Foote & Co.

Dillon, J. 1. Judgment : against a several obligor: satisfaction. I. The plaintiffs’ action in Illinois upon the note now in suit, was against E. S. Eoote alone. The note in suit being several as to Eoote, it is plain that he might thereon be severally guecj a]1(j a recovery against him, without satisfaction, would be no merger of the note as to the other maters, E. S. Eoote & Co. So far as E. S. Eoote is concerned, there is no satisfaction of the judgment. There was for a time an apparent satisfaction, but no real one. This was adjudged in the chancery proceeding against Eoote, to which he was a party. And the Illinois judgment is, as to Eoote, yet in full force, the sale on execution having been set aside for what was decided to be a fraud on the part of Eoote. If Eoote had paid and satisfied the judgment or the note in suit, this would inure to the advantage of the present defendants, since the plaintiff’s could not recover payment or satisfaction twice. But the court in Illinois decreed that the judgment against Foote had not been paid, and so far as the present defendants claim to be released simply i/n consequence of payment made by Eoote, they must abide the case of Eoote under whom they made this claim. There was no error in overruling the second, third and fourth grounds of defendants’ demurrer, and it is in relation to these that the foregoing observations are made. This disposes of the defendants’ appeal. 2. — parties, II. Plaintiffs’ appeal rests upon the alleged error of the court in sustaining the first ground of defendants’ demurrer to the petition as amended. If the petition and amended petition, taken together, show a good cause of action, the demurrer thereto should [564] have been overruled. Thus taken, they show that the judgment in Illinois on the note was against Foote, individually; that, to satisfy it, certain real estate of Foote was sold; that this satisfaction was set aside, and the said judgment decreed to be in full force, notwithstanding the sheriff’s sale and return. This action is against the other makers of the note, viz.: the firm of E. S. Foote & Co., and who were not parties to the former action on the same note. And the ground of demurrer which the court sustained, simply is, that the defendants Amsden and "Walker, were not parties to the chancery proceeding by which the satisfaction of the judgment was set aside. This alone, without more, is surely no defense to an action upon their promise. . They were not parties to the judgment against Foote, and were not, merely because they were co-makers of the note, necessary parties to a bill to cancel a sale of land which did not belong to them, and in which they, as a firm, had no interest. In determining the sufficiency of the plaintiffs’ petitions, we must look to them and the allegations they contain. Therefore, no weight can, on a demurrer to a petition, be given to the allegation, in the answer, that, after the satisfaction of said judgment, one of the defendants accounted with Foote. The amended petition is not a reply, and is not to be so regarded. The statute supplies the replication in a case like the present. If the defendants should plead and show that, intermediate the return of the execution satisfied, and the setting aside of such satisfaction, they, upon the representation cmd fwith that Foote had wholly satisfied the debt, had paid him, this would present a very different question, and one which does not arise upon the present record. So, if the present defendants were sureties of Foote, and had, upon the strength of the entry of satisfaction of the plaintiffs’ judgment, released securities [565] ■which they had from him, there would still be a different question from any made in this appeal. So far as shown, all the makers of the note are principals. We hold that the District Court erred in-deciding that the petition and amended petition, taken together, did not set forth a cause of action, or contained facts that avoided a cause of action. Its judgment sustaining the first point in the demurrer is therefore reversed, and the cause remanded, with leave to defendants to answer the petition as amended, if they shall-be so advised. Eeversed.