Chickasaw County v. Pitcher

Cole, J. 1. PARTIES: transCer of cause of action. I. The first error assigned by the defendants is in overruling the motion or application to require Spaulding to be made a party, the right of action having been assigned to him. It would not have been error if the court had sustained the motion; nor was it error to overrule it. Rev. of 1860, § 2794. “No action shall abate by the transfer or assignment of any interest therein during its pendency. * * * In case of any transfer of interest, the action may be continued in the name of the original party, or the court may allow the person to whom [597] the transfer or assignment is made to be substituted in the action, proper orders being made as to security for costs.” s. PunsrcrpAii iSckarge of: surety. II. The defendants, among others, asked the court to give to the jury this instruction: “ 8. If you find, from the evidence, that A. Spaulding, for a good consideration to be paid to him by John Pitcher, the principal defendant in this action, agreed to procure for said Pitcher a release from Chickasaw county of the liability of said Pitcher and the other defendants, his sureties, from the cause of action set up in the petition, and that time was given to the said Pitcher for the payment of a part of such consideration, and that said Spaulding afterward entered into another agreement between himself and Chickasaw county, under which he, the said Spaulding, became the owner of said cause of action before the time given by him to said Pitcher had expired, then said agreement between said Spaulding and Pitcher would operate to suspend all right to prosecute this suit until the time so given by Spaulding to Pitcher had expired. And if you further find that such time was given without the knowledge or consent of the sureties, then it will be your duty to return a verdict for all the sureties.” The court refused to give this instruction, but, at the request of the plaintiff, gave the following : “ 7. The agreement between Pitcher and Spaulding is not an agreement to extend the time of payment on the bond sued upon; neither did it necessarily operate to extend the time of payment thereon, or to suspend the right to prosecute the action by the plaintiff.” The refusal to give the first, and the giving of the last, were alike errors. By the terms of the contract between Spaulding and the county, and its performance, he became entitled, as owner, to the bond sued on, and the proceeds of the action upon it. His agreement to accept the piers and materials, and the sum of $1,200 on the 11th day of August following, in payment for the claim, operated, of necessity, to suspend his further right to prosecute the action till that time arrived, whatever might be his rights thereafter. The rule [598] is too well settled to justify the citation of authorities to support it, that the giving of a valid obligation, payable in the future, operates to suspend all right of action on the consideration for which it is given, until the expiration of the time fixed for the payment of the obligation ; and this, although the obligation is not, in itself, payment (sed vide authorities cited in 2 Pars. on Contr. 683, 684). So, also, is the rule well settled, that if the creditor, by any arrangement, entitles the principal debtor to claim, for anytime, exemption from performance, it will operate to discharge the surety. Hershler v. Reynolds, 22 Iowa, 152; Bonney, Adm’r, v. Bonney, 29 id. 448, and cases cited in each. The same may be said respecting other instructions, both those given and refused, but it is not necessary to review them at length. 4. iNSTRuctions. 6. Verdict. III. The plaintiff asked the court to give the following instruction, which was refused, and thereon the plaintiff assigns error: “8. If the jury find from the evidence that the contract between Spaulding and Pitcher was never delivered so as to become a fully completed contract, and that Pitcher had never complied with its terms by payment of the note therein embraced, the plaintiff is entitled to recover in this action all damages sustained by reason of the non-performance of his contract by Pitcher with plaintiff.” It was not error to refuse this. In the first place it is exceedingly uncertain and ambiguous. What is meant by the expression “ was never delivered so as to become a fully completed contract?” Was it intended to ask the jury to find that the contract was never delivered ? If so, why not stop there? And, besides, if it was never delivered, why ask the jury to further find whether its terms-were complied with? But there was no issue or evidence to justify any claim that the contract was never delivered. After the contract was executed, Spaulding took all that he was entitled to under it, except the money, and it does not lie in his mouth, therefore, to say that it was never delivered.- The interrogatories to the jury upon this point were equally uncertain and evasive, and should [599] have been rejected, because they did not call for an answer which was an ultimate fact. As to the plaintiff’s appeal, the judgment must be affirmed. As to the defendants’ (sureties) appeal, it must be reversed. As against the defendant, Pitcher the judgment may be allowed to stand. The abstract contains forty pages of testimony. It is not prepared according to the rules of this court which require an abstract of the testimony in narrative form. The testimony in this case contains both questions and answers, and is full twice as long as it ought to be. Hereafter, no allowance whatever will be made for printing testimony in that form. In this case the clerk will tax the costs for printing twenty pages only of the testimony. Reversed.