Triplet v. Randolph , 46 Mo. App. 569 ( 1891 )

Ellison, J.

Randolph and Riddle were sureties on a promissory note given to plaintiff by McClelland. Plaintiff has sued all three. The sureties filed an answer which was not considered by the court as a defense, and judgment was rendered on the pleading for plaintiff. The sureties appeal.

The answer is subject to criticism for lack of clearness, but it sets up matter which may be divided into, two defenses, first, that plaintiff by his conduct had waived the statutory thirty days’ written notice to sue ; and, second, that plaintiff had caused them to forego securing themselves at a time when they could have done so. That, McClelland afterwards becoming insolvent, they were unable to protect themselves. The latter defense, in our opinion, is good. In Carpenter v. King, 9 Metcalf, 511, it is decided that when a creditor, who knows that one of his debtors is a surety, tells the surety that the debt has been paid, and in consequence the surety forbears obtaining security which he might and would have obtained but for such information from the creditor, he is discharged. See also Driskill v. Mateer, 31 Mo. 325. This principle is directly applicable to this case. The answer when taken as a whole alleges in substance that Randolph and Riddle went to plaintiff and told him that the note could then be collected from McClelland ; that they were unwilling to remain longer liable; that plaintiff in reply assured them that McClelland had promised to give him security on real estate, that if he did so plaintiff would give him further time, that if he did not do so, or otherwise arrange the matter, plaintiff would at once proceed to collect the note, and that it would not be necessary for them to take any further action in the matter ; that plaintiff afterwards sent them word that they need not be uneasy about the note as he “had arranged the matter with McClelland ; ” that, but for being thus misled they could have secured themselves against loss on account of the note; that McClelland afterwards became insolvent, and that plaintiff is estopped from claiming anything from them. This we think constitutes a good defense.

II. We are not satisfied as to that portion of the answer referring to the failure to give the thirty days’ written notice, but, as the case is to be remanded, it is not necessary to go into an extended criticism ; and, as it may be amended so as to be made more definite and certain as to what was said and done by the parties with reference to a notice, we will add that if the sureties told plaintiff that they intended to givé him written notice to commence suit on the note, and he implied to them that McClelland was going to secure it; that, if he did not do so, or otherwise satisfactorily arrange it he, plaintiff, would proceed at once to collect; and, that afterwards he sent them word that he had arranged the matter satisfactorily; and, in consequence of this, they failed to give the notice which they otherwise would have given, and that the note could have been collected from McClelland if suit had been commenced and diligently prosecuted, but could not after-wards be collected on account of McClelland becoming insolvent, — in other words, if the creditor, knowing one of his debtors to be a surety for the other, and that he was about to give him legal notice to bring suit, by his conduct prevents the notice from being given, which, if given and acted upon, would have caused the bringing of the suit aud the collection of the note, but which not being done, and the principal becoming insolvent, it cannot afterwards be collected, discharges the surety. Such condition of the case, it seems to me, would meet the necessary requisites of an estoppel.

The judgment is reversed and the cause remanded.

All concur.