Pearl v. Cortright

Terral, J., delivered the opinion of the court. On the 1st day of February, 1897, B.. N.,Marriott was due Pearl a large sum of money, and Pearl then had a suit against him for some personal property mortgaged to him to secure said debt. In compromise and settlement of said suit Marriott agreed to make Pearl two notes of §200 each, payable, one on [306] the 15th day of December, 1897, and the other on the 15th day of December, 1898, and to give as surety on said notes Ira A. Cortright, a merchant at Rolling-fork, who was then absent in New York, and until his return and signature thereto Marriott was to execute a mortgage or deed of trust on certain personal property, which deed of trust was to be canceled by Pearl when Cortright signed the notes. This arrangement was agreed to. The temporary deed of trust was executed and filed for recording, and upon the return of Cortright the notes signed by Marriott were taken by him to Cortright, who, upon his solicitation, indorsed his name upon the notes. Thereupon Pearl complied with his agreement with Marriott by going with him immediately to the court-house, and marking upon the record of said deed of trust its cancellation. Marriott having-died, and no administration having been taken upon his estate, Pearl brought this bill to recover the contents of said notes; and from a decree in Cortright’s favor Pearl takes this appeal. We think the holding of the chancellor is erroneous. It is quite plain, under the circumstances stated, that Cortright was a promisor and co-maker with Marriott in the execution of the notes sued on, and that he participated in the consideration upon which they were based. The placing by Cortright of his signature upon the back of the notes, instead of upon the face of them, is immaterial, and did not alter the effect of the transaction. It 'is true he signed the notes some weeks after they were signed by Marriott, but he did so in execution of an agreement had between Pearl and Marriott upon the day of their date, and thereby participated in the consideration supporting their validity as fully as did Mariott himself. The consideration which supports the validity of the notes between Pearl and Marriott supports their validity between Pearl and Cortright. We think Cortright a co-maker of the notes, and that they were supported as against him as well as against Marriott by a valid consideration. Polkinghorne v. Hendricks, 61 Miss., 366; Clopton v. Hall, 51 Miss., 482; McNaught v. [307] McClaughry, 42 N. Y., 22 (1 Am. Rep., 487); Tied. Com. Papers, sec. 157; Moies v Bird, 11 Mass., 436 (6 Am. Dec., 179). 2. It is claimed that the cancellation of the deed of trust of February 1, 1897, which was given by Marriott, to be of force .until Cortright signed the notes, rendered them uncollectible to the extent of the security canceled. But it is only when a creditor fails to collect a security which he could have enforced that he must suffer the loss of his default. Pearl could not have enforced this trust deed, because it was expressly agreed between him and Marriott that it should be canceled when Cortright signed the notes. 2 Daniel Neg. Inst., sec. 1311. It would have been a fraud upon the part of Pearl not to have canceled it. If Cortright relied upon its retention by Pearl, he should have disclosed his desire to him, and otherwise the understanding between him and Marriott did not affect Pearl, whose agreement with Marriott was that- it should be canceled when he got the suretyship of Cortright to the notes. Pearl was not affected by any fraud practiced by Marriott upon Cortright in inducing him to sign the notes, of which he had no knowledge. Graves v. Tucker, 10 Smedes & M., 9; Robb v. Halsey, 11 Smedes & M., 140, 147; State v. Allen, 69 Miss., 508, 522 (10 South., 473; 30 Am. St. Rep., 563). The decision of the court below must be reversed. Reversed.