Lunt v. Silver , 1878 Mo. App. LEXIS 19 ( 1878 )

Lewis, P. J.,

delivered the opinion of the court.

It appears from this record that the plaintiff was indebted "to James S. Dolan, and proposed to pay him with a note, to be executed by one Ruffner and the defendant as joint makers. The proposal being favorably considered, a note In Dolan’s favor was signed by Ruffner on the face, and by -defendant on the back thereof, and, in this condition, was handed to plaintiff for delivery to Dolan. On presentation, Dolan refused to accept the note without plaintiff’s name thereon, in addition to the others. Plaintiff, without the knowledge or consent of the other signers, wrote his name ¡across the back of the note, whereupon Dolan accepted it. Afterwards, Dolan transferred the note to L. M. Rumsey & Co., who, upon its maturity, sued and obtained judgment against Doian, Ruffner, and the present defendant. This judgment was paid by Dolan, who thereupon sued and recovered against the present plaintiff, who satisfied Dolan’s judgment. Plaintiff now sues to indemnify himself in a recovery against the defendant. The facts appearing in evidence substantially as here stated, the Circuit Court instructed the jury that the plaintiff was not entitled to recover. Plaintiff took a nonsuit, and, by the usual steps, perfected his appeal.

It is manifest that, whether this be considered as a suit on the note or as for money paid to the use of defendant, there can be no recovery if the defendant was not liable upon the demand which the plaintiff satisfied. That the plaintiff was compelled to pay, avails nothing, if the compulsion resulted from no default of the defendant. If the defendant owed nothing, he could not be in default. The law is well settled that the addition of a new name as maker will discharge all the original parties in a note, not consenting thereto. Gardner v. Walsh, 5 El. & Bl. 82; Hall’s Administrator v. McHenry, 19 Iowa, 523; Wallace v. Jewell, 21 Ohio, 171 Henry v. Coates, 17 Ind. 161; Haskell v. Champion, 30 Mo. 138.

It does not appear that the defendant ever consented to the addition of the plaintiff’s name on the note after its execution and delivery by himself. So far as defendant was concerned, the delivery to plaintiff was a delivery to the payee. The alteration was material, and discharged the defendant from either original or collateral liability. The judgment must be affirmed.

All the judges concur.