Knode v. Baldridge

1 Ind. L. Rep. 216

• Court: Indiana Supreme Court
• Decided: April 27, 1881
• Status: Published

Opinion

Opinion of the court by

Mr. Justice Elliott,

The assignment of error which first requires consideration is that based upon the ruling refusing appellants a new trial.

The material facts established by the evidence may be thus summarized: Robert Kewcome and Franklin G. Newcome were partners under the firm name of R. & F. G. Newcome, and by their firm name executed to Daniel Petty the promissory note upon which the complaint is founded. The note is dated November 9, 1872, and payable one day after date. Subsequent to the execution of the note, Robert Newcome died. In 1878, after the death of said Robert, the Wayne Circuit Court appointed Andrew S. Higgins receiver of the assets and business of the partnership.

The receiver took into possession all the property of said firm, and was in possession thereof at and before the time of the trial of this cause, but there is no evidence as to the amount or value of such assets. After the execution of the note Daniel Petty, the payee, died testate, and Eli Petty and George G. Baldridge were appointed executors, and after their appointment and qualification the executors delivered the note in suit to the appellee, Edward R. Baldridge, as devisee under the will of said Daniel Petty. Archibald B. Knode and George G. Hindman were sureties on the said note. The following endorsements were made on the note :

“Nov. 9, 1873, received the interest to date, say.$200

Received interest for one year, 1875 . 200

November 9, 1875, received interest for one year.200

Received interest for year 1876 . 200

There is no evidence showing that Daniel Petty the payee, knew earlier than 1874, that Knode and Hindman were sureties, but in 1874, when the payee’s agent collected the interest, he did know that they were sureties.

Appellant’s contention is, that when the interest for 1874 was collected an extension of time was impliedly granted for the term of six days, and the sureties thereby released. As we understand counsel’s argument, it is that the year meant by the indorsement was the time intervening between December 31, 1873, and January 1, 1875. The argument is ingenious and specious, but neither meritorious nor sound. The term year does not necessarily mean the period commencing with the first day of January and ending with the 31st day of the succeeding December. When the word year is used, twelve calendar months are usually intended, but not necessarily the twelve months commencing with the first and ending with the twelfth month of the calendar, arranged by the statute of George the Second. When the word year is used, its meaning is to be determined from the subject matter of the contract, and the connection in which it is used. The signification to be affixed to it is that which will carry into effect the intention of the parties and give to their contract the meaning and force which they intended it to have. Thornton v. Boyd, 25 Miss. 598; Paris v. Hiram, 12 Mass. 262. In the case in hand it is very clear that the parties meant the year which had passed, and not a j ear, nor any part of a year then in the future.

The point made that attorney’s fees were allowed without evidence as to their value, is not entitled to consideration, because the motion for a nes trial does not present any question as to the amount of the recovery.

The remaining question is, whether the appellants were entitled to an order directing that a levy be made upon, and a sale made of, the partnership property in the hands of the receiver before seizing the property of the appellants. The court did decree that the receiver pay into court for the use of appellee the full amount of the judgment rendered against appellants. This was as favorable an order as the appellants had any right to ask; we, indeed, are inclined to think one to which they were not at all entitled. The order could have been made effective, for in case the receiver wrongfully refused to obey it, the court, whose officer he was, could have enforced prompt and complete obedience. Ample means of enforcing the order were within reach of the parties.

It would have been error to order a seizure and sale of the property in the hands of the receiver, for it was then in the custody of the court, and was not held for the benefit of any particular creditors, but for the benefit of all. No one creditor had a right to have it seized and forced to sale upon execution for his own benefit. Our statute, providing for the levy and sale of a princi- ' pal’s property before resorting to that of the surety, has no application at all to a case where the principal’s property is in the control and custody of the court.

Judgment affirmed.