Gordon v. Russell

The opinion of the court was delivered by West, J.: The plaintiff sued on a promissory note. From an order sustaining a demurrer to her evidence she appeals. The note, maturing in three months, was executed in 1903 and signed by the defendants who were stockholders in the Electric Plaster Company, for the benefit of which company the money was borrowed and used. Payments were made from time to time, covering the years 1904 to 1912, inclusive. The action was begun October 22, 1912. 'The defendants pleaded the statute of limitations. The testimony was to the effect that all the [538] payments were made by the secretary and treasurer of the plaster company out of its funds. The corporation did not sign the note, and although the money may have been borrowed and used for the benefit of the company we see nothing in the evidence which relieves the defendants from liability upon their written contract signed by them. It is not perceived how there can be a surety without a principal. The judgment was rendered October 14, 1914. It appears that William Hunter, one of the original defendants, departed this life shortly after the trial in the court below, and that on April 22, 1915, the cause was revived as against his administratrix, Carrie L. Hunter; that on the same day she was served with notice of the appeal. The motion for a new trial was overruled October 27, ,1914. The administratrix is properly in court. The judgment is reversed and the cause remanded for further proceedings in accordance herewith.