Schneider v. Maney

VALLIANT, J. This is a suit on three judgments, one in favor of Francis T. Conrad for $13,493.97, another in favor of Martha Clark for $7613.15, and the third in favor of Agnes Conrad for $7613.51, all rendered in the circuit court of Buchanan county, October 3, 1893, and all assigned to J. G-. Schneider, the plaintiff in this suit. The judgments were founded on an administrator’s bond executed by James Walsh, as principal, and six sureties, Lutz, Smith, Rogers, Ullman, Fuelling and the defendant in this suit, Maney. Before the assignment to Schneider the judgments were released as to Rogers, and after the assignment they were released by the assignee as to Smith. Afterwards, in 1895, the assignee sued out — 40 — a scire facias against Walsh, the principal, and the remaining four sureties who had not been released, and obtained a revivor of the judgments as to them. April 14, 1905, Schneider released the judgments as to all the remaining sureties except this defendant Maney, and on the next day brought this suit against Maney alone. Defendant’s answer was a general denial, the ten-year Statute of Limitations, and payment. On the trial the plaintiff introduced in evidence the three original judgments, the judgments of revivor, and the indorsements of assignments and releases on the margin of the judgment records. On each of the original judgments was an assignment thereof by the judgment plaintiff to George T. Hoagland and by him to J. G. Schneider, the plaintiff in this suit, a release of Rogers by Hoagland while he owned the judgments and a release of Smith by Schneider after he became the owner. The release of Rogers is in this form: “This judgment is released and satisfied as to defendant Philip Rogers, by the plaintiff. See papers on file in case No. 5049, June SO, 1894. S. D. Cowan, Clerk; by C. M. Thompson, D. C.” “This judgment released as to Philip Rogers only'by George T. Hoagland, by release dated September 20, 1894, and filed with papers in case No. 5049, September 20, 1894. S. D. Cowan, Clerk; by C. M. Thompson, D. C.” The release of Smith'is in this form: “This judgment is, for value received, released as to Francis Smith. J. G. Schneider, December 20, ’95. Attest John T. Chestnut, Clerk; by A. Patton, D. C.” The release as to Lutz, Ullman, and Fuelling is written on the judgment of revivor and is in these words: “St. Joseph, Mo., April 14, 1905. For and on account' of part payments made in this judgment by Ferdinand Lutz, Benjamin Oilman and Louis Fuelling, I hereby release them, and each of them from any — 41 — and all liability in this judgment. J. Gr. Schneider. Attest: Ambrose Patton, Clerk.” This was all the evidence introduced at the trial. The court rendered judgment for the plaintiff against defendant Maney for $36,834.12, from which he appealed. I. Respondent takes the position that the evidence shows the release of but one of the six sureties, Smith, and therefore the defendant is liable for five-sixths of what remains due on the original judgments, and he computes that on the date of this judgment there was due for principal and fourteen years interest on the three judgments $50,970.67, five-sixths of which would be $42,475.55, whereas the judgment rendered against the defendant was only $36,834.12, and therefore he has no right to complain. As to the release of Rogers, respondent says the only evidence of it is the memorandum on the margin of the record of the judgment signed by the clerk and therefore it is mere hearsay. But respondent cannot object to that evidence on the ground that it was hearsay, because he introduced it himself. Besides the memorandum refers to a paper containing the release filed in another suit. As to the release of Lutz, Ullman and Fuelling it is signed by respondent himself and attested by the clerk, but respondent says it is written in the margin of the record of the revived judgment and since the judgment of revivor was at the suit of himself as assignee it is invalid, because as assignee lie had mo right to have a judgment revived in his own name. That is not a very captivating argument. Although this release was written on the margin of the record of revival, yet it related not to the act of revival, but to the judgment that was revived. If respondent .after obtaining money from those sureties for that release had thereafter sued them on tlie original judg — 42 — ment, and they had pleaded the release and he had replied to them as he is now replying to this defendant, he would have put himself in a very indefensible. position; it would have been equivalent to saying that in exchange for their money he had given them a shadow, not substance. A judgment of revivor is not the creation of an original judgment obligation, it is a recognition of the existence of the original judgment and a continuance of its life, therefore when Schneider signed the release saying that for the considerations received he released them from “all liability in this judgment” he and they understood that he released them from liability on the original judgment; if he intended otherwise he intended a fraud, which we will not presume. II. It is immaterial, however, so far as the plaintiff’s right of action against this defendant is concerned, whether the other sureties were released or not, because by force of our statute, section 2769, Revised Statutes 1909, contracts that were by common law joint are joint and several, and under section 2772 the creditor may sue any one or more of the joint obligors. Defendant would bp liable, therefore, for the balance due on those judgments after deducting the amounts paid by the other sureties for their release. Appellant refers to section 11278, Revised Statutes 1909, which is: “No such surety shall be compelled, in any action, to pay more than his due proportion of the original demand; and when such surety shall have previously paid any portion thereof he shall be liable to pay only so much as the amount already paid by him falls short of his due proportion of the original demand.” That statute refers only to the liability of contribution between the sureties; it does not apply in-a suit by the holder of the joint ob — 43 — ligation against- one or more of the joint obligors. [Vaughn v. Haden, 37 Mo. 178.] Plaintiff therefore had the right to recover of the defendant Maney the total amount due on the judgments, whatever that may be, but the trouble with the case made by the plaintiff is that he made no proof of the amount due. If there had been no payment the judgments themselves would show the amount due, but the plaintiff’s proof showed that there had been payments, yet failed to show to what amount. Ordinarily payment is an affirmative plea and the burden of proof is on the defendant, but there are exceptions to that rule, and this is one. "Where the proof of payment is in the exclusive knowledge and control of the plaintiff the burden is on him to produce it. The law is thus stated in 16 Cyc.,936: “Where the party who has not the general burden of proof possesses positive and complete knowledge concerning the existence of facts which the party having that burden is called upon to negative, or where for any reason the evidence to prove a fact is chiefly if not entirely within the control of the adverse party, it has been held that the burden of proof, meaning the burden of evidence, is on the party who knows or has special opportunity for knowing the fact, even in criminal cases, although he is obligated to go no farther than necessity requires.” That is the doctrine of this court. [Swinhart v. Railroad, 207 Mo. 423.] The evidence introduced by the plaintiff shows that five of the six sureties against whom these judgments were rendered have made payments and been released; how much those payments amount to is a fact peculiarly within the knowledge of the plaintiff, but he has seen fit to give no statement thereof either in his pleading or proof. That is a matter not within the knowledge of the defendant. The principal in the bond is not sued and no reason is given for omitting him. Has he also made a payment?- The plaintiff alone knows, — 44 — The plaintiff’s attitude is this: He comes into court saying: Here are three judgments against the principal and six sureties which have been regularly assigned to me; payments have been made by five of the six sureties and they have been discharged; how much those payments amount to I know, but do not care to say, and I demand judgment against the remaining surety for the full amount of the judgments, principal and interest, less whatever sums he may be able to prove I received from his co-sureties. The law will not sanction a judgment obtained under that showing. Under the evidence adduced the plaintiff was not entitled to recover. The judgment is reversed. Graves, P. J., Lamm and Woodson, JJ., concur, except they are of opinion that the cause should be remanded for new trial, and it is so ordered.