Murrell v. Scott ( 1879 )

Gould, Associate Justice.

In overruling the application for rehearing in this case, we remark—

1st. That the assumption that there was a contract between Murrell and Scott, (whether it be intended that it was but a part of the original transaction in which the note sued on was given, or that there was a subsequent and separate contract between them,) by virtue of which Scott was bound to resort primarily to the deed of trust and to use diligence in having it speedily enforced, is, under the pleadings and evidence in the record, unauthorized.

2d. The assumption that Scott stood by and assented to the employment by the trustee of an incompetent person to take charge of the stock, is unauthorized by the evidence. The charges of the court have reference to the pleadings and the evidence in the case. Whether a creditor might not by his conduct, without any fraudulent intent, preclude himself from suing the trustee for mismanagement, and thereby discharge the surety, is a question on which we do not feel called to pass. The charge of the court relieved the surety to the extent of any loss growing out of the “misconduct of Potter, aided or abetted by plaintiff”; and, with reference to the pleadings and evidence, we repeat the remark that it was substantially correct.

3d. The surety, instead of paying off* the note and himself assuming the place of the creditor, has seen fit to rely on defenses based on the idea that the trustee, in the care and management of the trust fund, was but the agent of the creditor. If the result be one of some hardship as to him, that constitutes■ no sufficient reason for reversing the judgment.

Motion overruled.