Corbett v. Clough , 8 S.D. 176 ( 1896 )

Fuller, J.

The complaint upon which this action was tried states a cause of action against the defendants jointly, upon the following promissory note: “$1,000.00. Pierre, South Dakota, July 13th, 1891. Three months after date we promise to pay Corbett & Whitmore, or order, one thousand and no 100 dollars, with interest at the rate of twelve per cent, per annum. Value received. Payable at Citizens’ Bank, Pierre, South Dakota. S. S. Clough. C. L. Millett.” Defendant Clough made no appearance in the action. Defendant Millett, for a defense thereto, averred in his answer that he signed the note as surety only, and that the same was accepted by plaintiffs with the express understanding that he should be held only in that capacity; “that, when said note became due and payable, the said plaintiffs, for a valuable consideration, agreed with the defendant S. S. Clough, and without the knowledge or consent of this defendant, to extend the time of payment of said note, and did extend the time of payment of the same, and thereby prevented this defendant from protecting himself from loss on said note, as he then could have done.” The case was tried to a jury, and upon motion o£ plaintiffs’ counsel, at the conclusion of all the evidence, the court directed a verdict in favor of plaintiffs, and against the defendants, for the entire balance found to be due upon said note according to its recitals; and this appeal is by the defendant Millett from a judgment accordingly .entered.

Upon the face of the note and in the handwriting of one of the payees and respondents, is the following memorandum: “Extended to December 1st, 1891.” The note matured October 13, 1891, and was collaterally secured by a deposit with respondents of bank stock of the value of $1,000, which belonged to Mr. Cloügh, and which thereafter became practically worthless. As appellant, who signed the note as surety, consented to no extension, he is released from liability, provided there was an agreement between the defendant Clough, as principal, ECnd respondents, as payees, upon a sufficient consideration, to extend the time of payment. After issue was joined, counsel for respondents applied for and - obtained leave to file an amended complaint, omitting therefrom the following averment, contained in their original pleading, which was verified by one of respondents’ attorneys: ‘‘That said note for a valuable consideration, was extended by plaintiffs to December 1, 1891, as appears by memoranda upon the face of said note.” As evidence of a consideration for the extension of time, counsel for appellant offered to introduce in evidence the paragraphs of the original complaint containing the above averment and the ruling of the court in sustaining an objection thereto is assigned as error. The record reasonably supports an inference that the only knowledge relating to an extension of time possessed by the attorney who verified the original complaint was derived from the memorandum upon the note, and, in the absence of anything to show that the recital was inserted authoritatively with the knowledge or under direction of respondents, it would be manifestly unjust to thus indirectly defeat the very abject to accomplish which the amended complaint was filed. Declaration's and omissions are often made by pleaders under a misapprehension of facts, requiring an amended pleading in order to correct mistakes; and where such amended pleading has been substituted for the original, which was drawn and verified by an attorney, we are familiar with no rule of evidence by which a party can be bound by the recitals therein contained. In Ponce v. McElvy, 51 Cal. 222, the court unqualifiedly say: ‘ ‘A complaint which has been superseded by an amended complaint is not admissible in evidence on be* half of the defendant on the trig.1 of the same cause in which it was filed.” Vogel v. Osborne (Minn.) 20 N. W. 129, was a case in which one of the material issues was whether defendant had sold plaintiff a certain harvester and binder. This fact was admitted in the original answer, verified by one of the attorney s for defendant, and was denied in the amended answer upon which the case was tried. Without laying the proper foundation by showing that defendant had directed or authorized his attorney to insert such averment in the original answer, the same was admitted in evidence, over defendant’s objection. For this reason alone the case was reversed on appeal. To the effect that a superseded pleading is not admissible, see Mecham v. McKay, 37 Cal. 154.

In disposing of the question here presented, we go only to the extent of holding that an original superseded complaint, signed and verified by an attorney, is inadmissible as evidence against the plaintiff, in support of an issue tendered by the answer to his amended complaint, unless it is first shown clearly that the recitals thereof, sought to be used as an admission, were inserted under his personal direction, or have since knowingly received his sanction and ratification. Applying to this case the rule by which a principal is bound by the admissions or declarations of his agent, the original complaint was properly excluded. It is obvious that nothing short of an agreement to give time which prevents the creditor from bringing suit will discharge a surety; and the reasons for the rule that an extension granted upon a consideration releases from further liability a surety who has not acquiesced therein are too familiar to merit discussion or require the citation of supporting authority. Subdivision 2 of Sec. 3538 of the Compiled Laws provides that “a written instrument is presumptive evidence of a consideration, ” and, in our opinion, the writing, extended to December 1st, 1891, ” is, in contemplation of law, a written instrument, importing a consideration, and imposing the burden of showing a want thereof upon plaintiff. A ‘ ‘written instrument” is defined to be ‘‘something reduced to writing as a means of evidence,” (11 Am. & Eng. Ene. Law, p. 275, note); “a writing expressive of some act” (Webst. Diet.); “anything reduced to writing” (And. Law Diet.) Pursuant to what the parties had agreed upon, the writing under consideration was placed upon the note by the payees thereof at the request of the maker, as evidence of the fact that further time had been granted; and, in contemplation of the statute, the contract thus expressed constitutes a “written instrument,” and ‘ ‘is presumptive evidence of a consideration. ” There being nothing in the evidence to rebut such presumption, and the burden being upon plaintiffs, the case should have been submitted to the jury under proper instructions.

Respondents’ contention that in no event could the surety be released, because the note had matured according to its terms before the extension was granted, and the liability of the surety was consequently fixed, is without merit and not supported by the authority upon which they rely.

The view we have taken disposes of the case, and renders á consideration of other assignments of error unnecessary. The judgment is reversed, and a new trial is awarded.