Hardester v. Tate

BIGGS, J. — Action, on the following note, to-wit: “Twelve months after date we or either of us promises to pay John Hardester or, order $100 for value received of him, with eight per cent interest from date until paid, this twentieth day of September, 1894. (Signed.) Philip Oanoy, P. M. Tate, John (x) Merrill.” Tate and Merrill only were sued. Their defense was that they signed the note as sureties for Oanoy; that after the maturity of the note the plainitff for a valuable consideration agreed with Oanoy to extend the time of payment for a definite period, and that this contract was entered into without the consent of the defendants. The plaintiff denied making the contract, and he also denied that the defendants signed the note in the capacity of sureties. The jury found the issues in favor of the defendants and judgment was entered in accordance with the verdict. The plaintiff has appealed. Prima facie the defendants are principals in the note, but for the purpose of securing their alleged rights or immunities as sureties it was competent for them to show byparol or extrinsic evidence that they signed the note as sureties. Garrett v. Ferguson, 9 Mo. 124; 1 Brandt on Suretyship & Guaranty, sec. 29; O’Howell v. Kirk, 41 Mo. App. 523. Upon the face of the note the defendants must be considered and treated as principals with respect to all persons without knowledge that they in fact signed the note as sureties. Therefore, the defendants’ instructions were erroneous in that the jury were not required to find that the plaintiff at the time he made the alleged contract of extension knew [627] that the defendants signed the note as sureties. Garrett v. Ferguson, supra; Greenough v. McClelland, 2 Ellis & Ellis, 424; Gipson v. Ogden, 100 Ind. 20; Lamson v. Bank, 82 Ind. 21; Tharp v. Parker, 86 Ind. 102; Brandt on Suretyship, etc., 375. The foregoing authorities hold that there is no presumption that the payee or holder of the note had knowledge of the suretyship at the time of the contract of extension, and that in all cases the surety must aver and prove the fact of such notice. An inquiry was made of one of the defendants if Oanoy had not indemnified him against liability on account of the note by assigning to him a policy of insurance on the life of Caney. The circuit court refused to allow the question to be answered. The offer of proof is not sufficiently definite to justify a ruling on the question. In view of a retrial we may suggest that the weight of authority seems to be in favor of the proposition that a surety who is fully indemnified can not be prejudiced by an extension of the time of payment, and therefore will not be discharged by such an agreement. 2 Brandt on Suretyship, sec. 349; Kleinhous v. Generous, 25 Ohio St. 667; Fay v. Tower, 58 Wis. 286; Jones v. Ward, 71 Wis. 152; Moore v. Paine, 12 Wend. 123; Chicton v. Robbins, 4 Ala. 223; Bradford v. Hubbard, 8 Pick. 155. For the error pointed out the judgment of the circuit court will be reversed and the cause remanded. All concur. Judge Bond in the result.