Myers v. Oglesby

Mr. Chief Justice Sharkey delivered the opinion of the court. This action was founded on a joint and several promissory note made by Swisher, White, Wadlington and Myers, payable to the defendants in error, and the assignment of errors is predicated on several bills of exceptions which were taken on the trial by the plaintiffs in error. By the first, it is shown that afte;r the note had been read as evidence, the defendants offered a bond, signed by 50 the same parties, and payable to the same parties, bearing even date with the note, in the sum of thirty two hundred dollars, conditioned for the delivery of forty bales of ginned cotton at Tchuia, within eighty days, to the plaintiffs below, in which is a recital to the effect that Swisher had received a loan of sixteen hundred dollars, (which is also the amount of the note,) in payment of which the cotton was to he delivered, and the surplus, if any, to be refunded. The object was to show that the bond was given to secure the same debt for which the note had been given, and that the note was thereby merged in the bond, and extinguished. The court refused to permit the bond to go to the jury, and decided that the hote was not merged, and that the action on it was well brought. This decision is complained of, because it was a question of fact, to be decided by the jury, whether the bond was for the debt secured by the note, and also because of the error in deciding that the higher security did not extinguish the legal effect of the lesser; and these objections we think are well taken. It is clearly true, as a legal proposition, that a simple contract debt is merged, extinguished, or satisfied, by giving a bond for it. Both securities for the same debt cannot exist, and the higher is to be preferred by the law. Cbitty on Contracts, 291; 5 Mass. Rep. 11. A bond taken as additional or collateral security merely, would not extinguish a simple contract debt; but as this bond was given by the same parties, for the same amount, it is difficult to regard it in the light of a collateral security, if indeed it was given for the same debt. But even if it were given as collateral security, it devolved on the plaintiff below to show this fact, for this reason: the giving of a bond for a simple contract debt, is per se a discharge of the latter; and if the transaction was susceptible of an explanation which would vary the necessary legal effect, such proof should have come from the party who insisted that it was but collateral security; but the record contains no such proof. The court seems to have taken it for granted that both securities were for the same debt. This was properly a question of fact for the jury, and if the question of law had been correctly decided, the other party might have justly complained that the court had decided on the question of fact. But if the fact was as the court seems to have 51 considered, that both securities were for the same debt, then the court mistook the law in saying that the simple contract debt was not merged. The question of fact should have been left to the jury, under a charge that if they believed the bond was given for the same debt secured by the note, then the note was merged in the bond, and the plaintiff could not recover in this form of action; for such an objection may be made under the general issue pleaded, as was done in this case. Another bill of exceptions was taken on the refusal of the court to charge the jury. The plaintiff introduced the note, and offered proof to show that Myers had made a promise prior to the signing of the note; and upon this state of the case the court was asked to instruct the jury, that if the money was advanced to Swisher prior to the making of the note by Myers, that then the mere signing by Myers is not such a contract as will authorize a recovery, unless it should appear that Myers promised to sign the note prior to the loan, and in consideration that the money should be advanced, which the court refused to do. Even if such a charge would be proper under a different state of case, there was nothing before the court to justify it. The note was evidence of the debt; it bears date the 15th of October, 1838, and this is to be regarded as the day of its execution by all the parties, until the contrary be shown; and there was no evidence that Myers signed it at a different time. There was therefore no evidence in the case to which the charge could apply. It was but an abstract question of law, which was properly refused. The proof by the plaintiff that Myers had made a previous promise was unnecessary, and laid no foundation for the charge. In the argument, this question has been treated as though Myers had made a subsequent or collateral promise to pay the pre-existing debt of Swisher, but the case shown by the record is an original entire transaction, and even if the money was advanced to Swisher alone, it was a sufficient consideration for the liability of all the parties. For the first error, however, the judgment must be reversed, and cause remanded.