Rosenberg v. Schoenwald

BRADY, J.

The plaintiff sued the defendant as indorser of 12 promissory notes, each for $10, and made by Max Engler and Harry Schoenwald. The defendant defended upon the ground that the notes sued upon were the same notes given with others made by the sanie makers, and indorsed by the defendant, and all delivered to the plaintiff, together with a chattel mortgage • signed by the makers of the notes and given as collateral security for the payment thereof; that thereafter the chattels covered by the mortgage were sold to one Isaac Engler, and subsequently an action was commenced by the plaintiff against the makers of the notes and Isaac Engler to foreclose said mortgage, which action was settled and discontinued, and the plaintiff received upon the settlement the sum of $150, and that an instrument in writing entitled in the action was signed by the plaintiff, by the defendant Isaac Engler, and by the attorney for the plaintiff, stating that the action was settled and discontinued, and so marked by the presiding justice.

The action was tried before the court without a jury. The plaintiff proved a prima facie case, and the defendant moved to dismiss the complaint upon the ground that the defendant was relieved as indorser by reason of the settlement of the action referred to. The entire record in that action was not put in evidence, but the facts as. recited above appear sufficiently in the record herein. There was enough to warrant a finding that the makers of the notes and the lien of the mortgage was discharged, and it follows that the indorser, the defendant herein, was released from liability.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.