McClure v. Johnson

Supreme Court of Oklahoma

McClure v. Johnson

1898 OK 72, 65 P. 103, 10 Okla. 663, 1901 Okla. LEXIS 55

CourtSupreme Court of Oklahoma

DecidedJuly 30, 1898

StatusPublished

Cited by12 cases

This text of 1898 OK 72 (McClure v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McClure v. Johnson, 1898 OK 72, 65 P. 103, 10 Okla. 663, 1901 Okla. LEXIS 55 (Okla. 1898).

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Opinion

*666 Opinion of the court by

McAtee, J.:

The plaintiff’s petition is a good one, unless the proposition could be sustained that the right ol: the recovery in behalf of the surety who has paid the debt of his principal, represented by a promissory note, is based upon an implied agreement of the principal to repay the surety’s outlay made by reason of his suretyship. But this is not the law. The surety upon the promissory note, who has paid his principal’s debt, is subrogated to all the rights of the holder of the note, one of which is to recover upon the note itself and to the enjoyment of all the securities which his principal was entitled to for the payment of the debt, and he'has the right to be substituted in his principal’s place, when, as surety, he pays the debt for the principal. The surety is entitled to the possession of the promissory note, which he has discharged, and he may pursue his remedy thereon against the maker, who is primarily liable. The right of action of the surety who has discharged the note is against the principal upon the note, and not upon the implied promise to pay. (Rand v. Barrett, [Iowa] 24 N. W. 530; Daniel on Negotiable Instruments, vol. 2, sec. 1343; Sublett v. McKinney, 19 Tex. 438; Tutt v. Thornton, 57 Tex. 35.) So much for the common law.

W'e should infer as much from the provisions of our own statute, which prescribes that: “A surety, upon satisfying the obligations of the principal, is entitled to enforce every remedy which the creditor then has against the principal, to the extent of reimbursing what he has expended.” * * * (Statutes of Oklahoma, 1893, sec. 2951.)

The answer of the defendant neither admits nor denies the allegation of the plaintiff that the plaintiff has never *667 paid the note, and since it is provided in the chapter upon pleading, Code of Civil Procedure, sec. 4008, Statutes of 1893, that: “Every material allegation of the petition,, not controverted by the answer * * * shall, for the purposes of the action, be taken as true,” the plaintiff is entitled to judgment, unless the defendant has set up a good defense or counter-claim in his answer, which the plaintiff challenged by "his demurrer. The answer, for a “set off and counter-claim,” set up, on the 27th day of August, 1896, an oral promise of the plaintiff to pay t<f him the sum of five hundred dollars, and that no payment had been made thereon, except the sum of one hundred and fifty dollars, on or before March 10, 1892. The statute of limitations now in force was adopted August'14, 1893, and prescribes that a civil action of this character, can only be brought within three years from the time when the cause of action accrued. But this claim was not set up until August 27, 1896. The court below should have sustained the demurrer.

The judgment of the lower court is reversed, and the cause remanded with instructions to sustain .the demurrer, filed by the plaintiff- in error to the answer of the defendant in error.

All of the Justices concurring.

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*666 Opinion of the court by

McAtee, J.:

The plaintiff’s petition is a good one, unless the proposition could be sustained that the right ol: the recovery in behalf of the surety who has paid the debt of his principal, represented by a promissory note, is based upon an implied agreement of the principal to repay the surety’s outlay made by reason of his suretyship. But this is not the law. The surety upon the promissory note, who has paid his principal’s debt, is subrogated to all the rights of the holder of the note, one of which is to recover upon the note itself and to the enjoyment of all the securities which his principal was entitled to for the payment of the debt, and he'has the right to be substituted in his principal’s place, when, as surety, he pays the debt for the principal. The surety is entitled to the possession of the promissory note, which he has discharged, and he may pursue his remedy thereon against the maker, who is primarily liable. The right of action of the surety who has discharged the note is against the principal upon the note, and not upon the implied promise to pay. (Rand v. Barrett, [Iowa] 24 N. W. 530; Daniel on Negotiable Instruments, vol. 2, sec. 1343; Sublett v. McKinney, 19 Tex. 438; Tutt v. Thornton, 57 Tex. 35.) So much for the common law.

W'e should infer as much from the provisions of our own statute, which prescribes that: “A surety, upon satisfying the obligations of the principal, is entitled to enforce every remedy which the creditor then has against the principal, to the extent of reimbursing what he has expended.” * * * (Statutes of Oklahoma, 1893, sec. 2951.)

The answer of the defendant neither admits nor denies the allegation of the plaintiff that the plaintiff has never *667 paid the note, and since it is provided in the chapter upon pleading, Code of Civil Procedure, sec. 4008, Statutes of 1893, that: “Every material allegation of the petition,, not controverted by the answer * * * shall, for the purposes of the action, be taken as true,” the plaintiff is entitled to judgment, unless the defendant has set up a good defense or counter-claim in his answer, which the plaintiff challenged by "his demurrer. The answer, for a “set off and counter-claim,” set up, on the 27th day of August, 1896, an oral promise of the plaintiff to pay t<f him the sum of five hundred dollars, and that no payment had been made thereon, except the sum of one hundred and fifty dollars, on or before March 10, 1892. The statute of limitations now in force was adopted August'14, 1893, and prescribes that a civil action of this character, can only be brought within three years from the time when the cause of action accrued. But this claim was not set up until August 27, 1896. The court below should have sustained the demurrer.

The judgment of the lower court is reversed, and the cause remanded with instructions to sustain .the demurrer, filed by the plaintiff- in error to the answer of the defendant in error.

All of the Justices concurring.

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Bluebook (online)

1898 OK 72, 65 P. 103, 10 Okla. 663, 1901 Okla. LEXIS 55, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclure-v-johnson-okla-1898.

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