Lyle v. Morse , 24 Ill. 95 ( 1860 )

Walker, J.

The assignment of errors questions the judgment of the court below, in not carrying the demurrer to plaintiffs’ replication, back to defendant’s second plea. We think that this plea only shows an agreement to release the surety, when the mortgage should be executed by the principal in the note. It is true that the plea avers that plaintiffs released Morse, but it is stated more as a conclusion from the facts stated in the plea, than as an agreement of the parties. This was evidently the meaning of the pleader, as he follows that averment with another, that Hutchins had, at all times since then, been ready, willing and able to make, and had repeatedly offered to make the mortgage, but plaintiffs had postponed its execution. If the agreement of the parties, at the time it was entered into, was for the immediate, unconditional discharge of Morse, there was no necessity to aver an excuse for the non-execution of the mortgage. Prom this it is manifest that the pleader did not put the construction upon the agreement, that Morse was discharged at the time, but that he would not be until the mortgage should be executed, and this is what the agreement set up in the plea shows.

If Morse was discharged by that agreement, no subsequent acts of the parties, without his assent, could again revive his liability. Then, if his liability was only to cease when the mortgage should be executed and the contract performed, the plaintiffs had agreed to take no steps in the matter, nor to do any act, until the mortgage was executed. They did not agree to have it prepared for execution, nor does the law impose it upon them as a duty. It was the business of the parties agreeing to give it, to have it prepared, executed and tendered, in compliance with the agreement, before Morse could be discharged. If Hutchins failed to do so, the duty devolved upon Morse to have it done. He alone was to be benefited by the consummation of the agreement, and if others have failed to •protect his interest, by not doing what he should have had done, he has no grounds of complaint, or for throwing the loss upon them.

The same objection that exists to the plea, applies to the second and third of defendant’s instructions. The second directs the jury that if about the time the note fell due, defendant Morse informed plaintiffs that he was unwilling longer to remain security, and that they agreed to release him and take other security from Hutchins, and he agreed to give it, that Morse was discharged, and they should find for him. The third instruction seems to qssume that plaintiffs had released Morse, whether the other .security was given or not, and the jury must have so understood it. The question then being tried was whether the plaintiffs, by the agreement then made, intended to release him, and the court erred in assuming that such was the fact, or that the proof of the facts supposed in the second instruction, necessarily proved that fact. That such was their intention, was by no means an uncontroverted fact. There is no evidence in the record which in terms shows it. The plain.tiff, John Lyle, in his conversation, which was proved, did not so state, but one of the witnesses thinks he asserted that Morse was not to be released until the other security should be given. The court erred in assuming that there was such an agreement, as that was a fact for the jury to determine from the evidence.

There was no evidence upon which to base the seventh and eighth of defendant’s instructions^ The evidence fails to show that there was any agreement to extend the time for the payment of the note, either with or without Morse’s assent. And when the eighth asserted, that the law and the courts were anxious to protect the security against any material change in the relations of Hutchins and the plaintiffs, it may have been understood by the jury, that they should take into consideration the delay in bringing suit, until the relation of a solvent debtor had changed to that of an insolvent one, and that Morse should therefore be discharged. The mere fact that plaintiffs delayed bringing suit until the principal in the note became insolvent, could not, of itself, release the surety; yet the jury must have understood this instruction as asserting that it would have that effect, as we perceive no evidence in the record that showed any other change in the relations of the plaintiffs and the principal in the note. This instruction was calculated to mislead the jury, and should not have been given.

The judgment of the court below must be reversed, and the cause remanded.

Judgment reversed.