Globe Mutual Insurance v. Carson

Ewing, Judge, delivered the opinion of the court. The application for a continuance of the cause was properly overruled. It fails to disclose due diligence in reference to procuring the deposition of the absent witness Davis. The defendants Carson and Springer were personally served with process in August, and the cause was triable at the ensuing October term of the court, and on the 8th day of the month they filed their answer. On the 10th December, they make their application for a continuance on account of the absence of Davis, the maker of the note, as to whom the plaintiff afterwards dismissed the suit. It appears from the affidavit filed in support of the motion that Davis lived in Kansas city, Mo., and that the defendants notified the plaintiff of their intention to take his deposition, but that by reason of [222] the sickness of affiant’s family he was unable to attend in person to the taking of the deposition ; that Davis had the settlement and arrangement of the whole business out of which plaintiff’s demand arose, and alone of the defendants had a personal knowledge of the facts connected with and material to the defence ; that the defence had been entrusted to him by his co-defendants, and that it was indispensable to the proper taking of the deposition that affiant should be present in order that the material facts should be elicited. This state of facts does not show any good reason why the deposition of Davis could not have been taken as advantageously to the defendants as if they had been present; or that it might not have been taken at a time when the obstacle mentioned in the affidavit did not exist so as to prevent their personal attention to it. When the steps were taken for this purpose it does not appear, but, for aught that does appear, the deposition might have been taken by the exercise of proper diligence, under the party’s own supervision, at some other time than that indicated (in his affidavit) by the notice. A party’s inability to attend in person to the matter, might, under peculiar circumstances, entitle him to a continuance; but, under the facts here presented, we think it did not in this instance, especially as the absent witness, from his connection with the transaction out of which it is alleged the demand arose, was familiar with the facts material to the defence, and they could have been elicited by an attorney as well as if the defendant had been present. The bill of exceptions shows that the defendants Carson and Springer were accommodation endorsers of Davis, the maker of the note sued on; that, after the maturity of the note, Davis, with three other joint makers, gave another note payable sixty days after date, for the same consideration as the first. It also appeared by the evidence of the attorney with whom the note in suit was left for collection, that there was no agreement to give time on the note, nor any assurance given that its collection would not be enforced without delay. But the note of sixty days was taken as collateral [223] security for tlie first, and plaintiff retained it as well as the collateral. There is no doubt that a'valid agreement between the payee and the maker to give time will discharge the endorser unless he assent. But it is equally true that the taking of a new security from the maker will not have this effect unless accompanied by an agreement, which postpones the remedy. Whether in any case where the instrument is due, the giving a new security by the maker, payable at a future time, would imply an engagement to wait until such security became due, it is unnecessary to determine; for such is not the transaction under consideration. The question here was, whether the new note was taken merely as collateral security for the note sued on, as presented in the instruction given by the court, and was a question of fact to be determined by the circumstances in proof, attending its execution. There is obviously nothing in the facts to warrant the hypothesis of the defendant’s instructions ; for if the agreement between the parties was such as the evidence tends to prove, it could not have suspended the plaintiff’s right to sue on the original instrument. Because if the remedy had been thus suspended or postponed, it would have released the endorser; and instead of being a collateral security, would have extinguished the first note so far as the defendants are concerned. Indulgence to the maker of a note on receiving securities from him does not discharge the endorser when there is no valid agreement for giving time of .payment for a definite period. (Bank of Utica v. Ives, 17 Wend. 503.) In Proug v. Clarkson, 1 Barn. & Cres. 15, a bill of exchange having been dishonored, the acceptor sent another bill for a larger sum to the payee by letter, but had no communication with him relative to the first. The payee discounted the second bill with the holder of the first, which he received back as part of the amount, and afterwards for a valuable consideration endorsed it to the plaintiff. Abbot, chief justice, observes, that in cases of this description, the rule laid down is, that if time be given to the acceptor, the [224] other parties to the bill are discharged; but in no case has it been said that taking a collateral security from the acceptor shall have that effect; here, the second bill was nothing more than a collateral security. Judgment affirmed; the other judges concurring.