Sullivan v. Rudisill , 63 Iowa 158 ( 1884 )

Beck, J.

I. The note in suit was executed by the appellant, George H. Eudisill, and H. Fuller. The defendant, Eudisill, in his answer, admits the execution of the note, and alleges that Fuller signed it as surety only, and that, after the execution of the note, plaintiff induced one Wealthy A. Eudisill to sign the note as one of the makers, whereby the original makers were discharged, and the person last signing became alone bound by the note. By an amended petition, plaintiff claims to recover upon the original indebtedness for which the note was given, and the defendant, in answer thereto, alleges that it was “dischai’ged by the novation of Wealthy A. Eudisill as a sole debtor, on her signing said note.” The abstract upon which the case is submitted to us fails to show any pleadings by the defendant, Fuller.

The referee found the following facts, namely: That the note was given for money borrowed by Eudisill of plaintiff, and that Fuller signed it as surety. Upon the request of plaintiff, and without the assent or knowledge of the makers of the note, Wealthy A. Eudisill signed it as surety, after its maturity. This was innocently done, without any fraudulent intention on the part of any one, for the purpose of better securing the note, after unsuccessful efforts to collect it.

The referee held that the signing of the note by Wealthy A. Eudisill was an alteration which rendered it void as to both makers, but, there being no fraud in the transaction, that plaintiff was entitled to recover against George II. Eudisill, upon the original consideration, the amount of the loan remaining unpaid, with six per centum per annum interest. The note drew interest at the rate of ten per centum per annum. A judgment in accord with the referee’s report was rendered against George II. Rudisill; the case was dismissed as to Fuller. Both plaintiff and defendant, Rudisill, appeal.

II. This court has held that the signing of a promissory note by one as a joint maker, after the execution by the original maker, without his knowlege and consent, is a material alteration, which will defeat the instrument. Hamilton v. Hooper et al., 46 Iowa, 515; Dickerman v. Miner, 43 Id., 508; Hall’s Adm'x v. McHenry, 19 Id., 521.

It has also been ruled by this court that, when a promissory note has been innocently altered, without any fraudulent purpose, the payee may recover in air action brought upon the original consideration. Krause v. Meyer, 32 Iowa, 566; Clough v. Seay, 49 Id., 111; Morrison Bros. v. Huggins et al., 53 Id., 76; Eckert & Williams v. Pickel, 59 Id., 545.

Upon the facts found by the referee, which are not brought in question, and under the petition which sought to recover upon the original consideration, the circuit court rightly rendered judgment for plaintiff.

III. Defendant insists that the effect of the subsequent-signing by a new party was to discharge the debt for which the note was originally given, and create a new one, and that thereupon no action will lie upon the original consideration. But in law the transaction has no such effect, which is taught by the decisions above cited, holding that, in similar cases, an action may be maintained upon the original consideration.

The facts found do not show that, by the subsequent execution of the note by a new party, there was an intention to discharge the debt and create a new one. On the contrary, it is shown that no such purpose was entertained; for the new signer executed the note as a surety thereon, thus implying that the debt still existed and was not to be regarded as paid.

IV. Plaintiff insists that the adding of a new name to the note as surety is not such an alteration as will defeat recovery on the note, and, therefore, the judgment ot the circuit court is erroneous. The objection is urged upon plaintiff’s appeal. But, as no errors are assigned by plaintiff, we cannot consider the objections urged by him against the judgment. - The foregoing considerations dispose of the case. The judgment of the circuit court .is affirmed on both appeals, the costs of which will be paid by defendant.

Affirmed.