Halderman v. Woodward

[739] The opinion of the court was delivered by Horton, C. J.: The only allegation of error discussed in the briefs is, that the finding of the trial court is not sustained by evidence, and is contrary to law. It is asserted by counsel for plaintiff in error, that there was no testimony produced upon the trial to sustain the rendition of a personal judgment against John A. Halderman. In brief, that the allegations of the petition to the effect that Halderman was the principal debtor, in the first instance, and that he also became liable to the insurance company by a promise to Earr, and again by a promise to the company, to pay the said $40,000, were unsupported by any evidence. An examination of the record sustains this view. The testimony of the plaintiff in the court below was so short, we give it entire. It is as follows: The plaintiff read in evidence the promissory note of G. D'. Earr, and mortgage deed of John' A. and Annie B. Halderman, and then said Halderman and Farr admitted that G. D. Farr was secretary, and E. Hensley president, of the Kansas insurance company, on November 1,1873, and that they executed and delivered, as such officers, to Geo. D. Farr the certificate of 400 shares of stock, of November 1,1873, No. 18,, and that said Geo. D. Farr signed his name on the back of the certificate, where it appears on the copy set forth in the petition; and also admitted, that Edward Russell was secretary, and John A. Halderman vice president of the insurance company, on August 16,1875, and that they, as such officers, signed and delivered to John A. Halderman the certificate of stock, No. 48, set forth in the petition. Thereupon said Geo. D. Farr testified that — “Soon after it (certificate No. 18) was issued to me, I assigned the certificate to Halderman, as collateral security, on account of the execution by himself and wife of the mortgage they gave to-secure the payment of the note. He kept the certificate for some considerable time, and then returned it to the company, and received in lieu thereof the aforementioned certificate No. 48. At the time certificate No. 18 was assigned to Halderman as collateral security, nor at any time thereafter, was anything said about his assuming payment of the note; but when it was agreed between us that he should have the stock abso [740] lutely, it was understood that the whole matter, as betweeA ourselves, was settled.” The plaintiff here rested his case. On the part of John A. Halderman, his deposition was read. He stated: “The note for $40,000, described in plaintiff’s petition, was executed by George I). Farr to the Kansas insurance company, in consideration of a like amount of the stock of said company,- and, so far as I know, for his own use and benefit, and not as my agent or trustee; that I had no claim or interest in the note, or the stock issued therefor, or in any stock issued to or held by said Farr; that at the time said stock was issued, nor at any other time, did I promise or agree to or with said Farr, or to or with said Kansas insurance company, to pay said note of $40,000, or any part thereof, or any other sum whatever; that I executed a mortgage to secure the payment of said note as a matter of form simply, for the accommodation of said George D. Farr.” Other matters appear in his cross-examination, but nothing to materially affect the case. This testimony, giving it the most liberal construction in favor of the finding of the court, fails to establish any personal liability on the part of John A. Halderman. Counsel for defendant in error, Woodward, suggests that when Halderman received the certificate of stock No. 48, of the date of August 16, 1875, there was an implied promise to the insurance company to pay for it. The transaction simply shows au exchange of the certificates of stock. Certificate No. 18, held by Halderman as security for the mortgage executed by him and wife, was surrendered to the insurance company, and in lieu therefor the certificate No. 48 was taken. Certificate No. 18 was in the name of Geo. D. Farr, certificate No. 48 was in the name of John A. Halderman, but both represent like amounts of stock. In this, we perceive no implied promise on the part of Halderman to pay $40,000, or any other sum, to the insurance company for the stock. Counsel for plaintiff in error further contend that the mortgagors were released and discharged by the acceptance [741] of interest from Farr on the note, and the delay in bringing suit. Counsel assume without proof, that there was an express or an implied extension of time upon the note, on account of the payment of interest. Such is not the fact. The indorsements of interest are as follows: '“Interest paid to Dec. 31, 1873; interest paid to Dee. 31, 1874; interest paid to June 1, 1876.” There are no presumptions that such interest was paid prior to their dates. No agreement to extend the time of payment to Farr was proved. All the record shows, is the payment of parts of the amount due on the note on Dec. 31, 1873; Dec. 31, 1874, and June 1, 1876. At these dates the whole note was overdue. The acceptance of these various sums did not extend the time of payment of the residue; nor were said payments any consideration to sustain an agreement to extend the time of payment. (Royal v. Lindsay, 15 Kas. 591; Jenness v. Cutler, 12 Kas. 500.) A simple delay is no ground to release a surety. The objection presented to the foreclosure of the suit upon that ground is not tenable. (Ray v. Brenner, 12 Kas. 105.) The judgment of the court below will be modified in accordance with the views herein expressed. The evidence amply sustains the judgment of foreclosure and order of sale of the mortgaged premises. All the Justices concurring.