Webber v. Alderman , 102 Mich. 638 ( 1894 )

Long, J.-

This is an action of assumpsit on a promissory note for $150, given by defendant French to Webber, Jnst & Co., and indorsed by défendant Alderman for accommodation. Plaintiff got the note by indorsement after maturity. Defendant Alderman, it is conceded, received none of the proceeds of the note. Webber, Jnst & Co. were a copartnership doing a banking business, the firm being composed of Samuel W. Webber, Josiah E. Just, Charles W. French, and a Mr. Fox. After the note matured, defendant Alderman called upon Charles W. French, who was a son of George W. French, the maker of the note,' at the bank, and claims that it was there arranged between them that he should be released from the note. He was asked to give the conversation that took place at that time, and said:

“I stepped into the bank, and said to Charles French, in regard to his father’s note that I was ony — the one that was about due; spoke to him about it, — and he says: ‘You •needn’t pay any further attention to that note. Father has put means in my hands so I can take care of that note. I will release you entirely from the note, and see .to it.’ I relied upon that, that his father had put means .in his hands by which he could take care of the note, and he would pay the note. I said nothing about paying the not'e after that.”

He was asked:

“You understood that the means were in Charles French’s hands, and not in the hands of the firm ?

“A. Yes, sir; Charles French’s hands.”

It was also claimed by defendant- Alderman that at that time the maker had property in his hands sufficient to pay the note, but had since become insolvent. Under this •evidence the court below directed a verdict in favor of •plaintiff against defendant for the amount of the note and •interest. Judgment was entered upon the verdict, and ■defendant Alderman brings error.

# Counsel for defendant seeks to invoke the rule that where the creditor promises to exonerate the surety, or to look solely to the principal for payment, and the surety is .induced by such promise to postpone or relinquish any of the means of indemnity to which he might otherwise have resorted, it will take effect as an equitable estoppel, and deprive the promisor of the power of retraction. This is .a correct statement of the principle. In Harris v. Brooks, 21 Pick. 195, 197, it was said:

“A parol declaration of the holder to the surety that he would exonerate him, and look to the principal only, is a good defense, on the ground that it lulls the party into security, and prevents him from obtaining his indemnity; and it would, be fraud on the part of the holder •afterwards, contrary to such assurance, to call upon such .surety.”

The same rule was laid down in Rowley v. Jewett, 56 Iowa, 492.

But there is no showing in the present case that the-holders of the note, Webber, Just & Co., ever made any such promise. It was the individual promise of Charles W. French, and from the testimony of Mr. Alderman he looked to Charles W. French personally' to pay and take care of the note. Charles W. French was not pretending to make the promise in -behalf of the owners of the note, and it is evident that Alderman did not so regard it, for1 he was expressly asked if he understood that the means to ■ pay the note were in Charles French's hands, and not in the hands of the firm, and responded, “Yes, sir; Charles French's hands." The promise he relied upon, then, was-the individual promise of Charles W. French that he had means in his hands to pay the note, and would pay it,, and release him (Alderman) upon it. The case is too-plain for argument that this promise cannot be construed as the promise of Webber, Just & Co. to release Mr. Alderman, and the court below very properly directed the-verdict for plaintiff.

The judgment is affirmed.

The other Justices concurred.