Opinion
01-01-1851
TERREL v. TOWNSEND, ADM'R.
J. Rivers, for appellant.
In an action by the payee against one of several comakers of a joint and several promissory note, a plea that the defendant was a surety upon the note, and that the plaintiff, knowing that fact, had instituted suit against the principal and recovered judgment from which there was an appeal to the District Court, upon which appeal no action was taken, and that when the judgment was so obtained the principal was solvent, and that the plaintiff by his own neglect had failed to obtain the money from the principal: Held, To be insufficient. Mere indulgence of the principal will not release a surety. One of several makers of a joint and several promissory note, where there are no words in the note to indicate that he signs as surety, cannot plead that he is a surety for the purpose of requiring another maker, whom the plea indicates as principal, to be previously or simultaneously sued.
Appeal from Colorado. This suit was brought by the appellee against the appellant and another upon two joint and several promissory notes made by the defendants and one Conkrite, and payable to plaintiff.
The defendant Terrel (the appellant) pleaded that he was surety upon the note; that suit had been prosecuted to judgment against Conkrite, the principal, before a justice of the peace, and an appeal taken by him to the District Court, upon which appeal no action was taken, and that when the judgment was obtained against Conkrite he was solvent.
To this plea exceptions were sustained, and the defendant amended, alleging that he was but surety upon the note, and that the plaintiff, knowing that fact, had by his own neglect failed to obtain the money from the principal. To this plea exceptions were also sustained. There was judgment for the plaintiff, from which the defendant appealed, and assigned as error the sustaining of the exceptions to the pleas.
J. Rivers, for appellant.
WHEELER, J. It is unnecessary to enter upon the inquiry as to what acts or omissions of the holder of negotiable paper will operate to discharge a surety upon it, as it is evident that the pleas in this case do not allege any act or omission which could have that effect. They state no facts which constituted in law a defense to the action. There is therefore no error in the judgment, and it is affirmed.
Judgment affirmed.