German National Bank v. Barber

SiebecKER, J. Upon the facts found by the referee the question is, Has the bank the right' to enforce the note in question against the defendants ? There is no dispute but that the bank surrendered to Hallock his stock without the knowledge and consent of the defendants. The surrender by the bank of the stock held by it to secure payment of Hal-lock’s note, which the defendants indorsed as an accommodation, without the knowledge and consent of the defendants, 112 undoubtedly operated to release the defendants from their obligation as indorsers of the ITallock note, had they insisted thereon when it came to their knowledge. They however did not insist on being released from their obligation on the note after having acquired knowledge of the. release of the ITallock stock by the bank. A year from the time they were informed of the release of this security by the bank they continued their obligation by giving their personal note to the bank for the amount due on the original debt secured by their indorsement of the Plallock note. It is established in the law that if a surety gives his note to take up the one on which he is liable as a surety, with full knowledge that' the property of his principal held by the payee of such note to secure payment thereof has been released and the right thereto relinquished, then the surety’s obligation continues and the note so given by him becomes a valid obligation. 32 Cyc. 162, Waiver of defenses; First Nat. Bank v. Jones, 92 Wis. 36, 65 N. W. 861; Mastin Bank v. Hammerslough, 72 Mo. 274. Such recognition of his liability does not require a new consideration to sustain it. Porter v. Hodenpuyl, 9 Mich. 11; Hooper v. Pike, 70 Minn. 84, 72 N. W. 829. The appellants contend that the release of the certificates of stock by the bank without their consent and the purchase thereof from Plallock by Washburn, one of the bank officers, constituted a fraudulent conversion of the stock and hence entitles them to recover the value thereof from the bank, for it presumably had the benefit of such value. This contention cannot prevail because the evidence sufficiently shows that the bank did not receive the proceeds of the transfer of the Plal-lock stock. The appellant's’ contention to the effect that the original debt of ITallock was fully discharged and satisfied by the surrender of the stock as shown by the evidence is not well founded. The referee’s finding to the contrary must be accepted as a verity on this question. Whatever right the appellants had to insist on their release from liability as sureties 113 ■on Hallock’s note on account of the relinquishment of, this stock by the hank "was waived by them when they gave their note to the bank, continuing their liability, with full knowledge that the stock had been so relinquished as security for its payment. Under the circumstances shown the promise evidenced by the note in question binding on the defendants, and the plaintiff is entitled to recover on the note. By the Court. — Judgment affirmed.