Merrill v. Taylor

2 Ky. Op. 576, 1868 Ky. LEXIS 508

• Court: Court of Appeals of Kentucky
• Decided: October 6, 1868
• Status: Published

Opinion

Opinion op ti-ie Court by

Judge Hardin :

. Tbe trustees of tbe Ziou Baptist Cburcb in Adair county beld a note on tbe appellant S. H. Merrill, and 0. J. Taylor for money which they borrowed as partners when engaged as sucb in tbe business of merchandising. Tbe debt appears to bave amounted to $920 on tbe 20tb of March, 1860, when a new note was given for tbe same consideration signed by said 0. J. Taylor, and by said S. IT. Merrill, with tbe word “surety” affixed to bis signature, and signed also by tbe appellees S. P. Taylor and J. Gr. Taylor. A judgment having been obtained on tbe last named note 0. J. Taylor paid $587.25 on tbe debt and Merrill paid tbe balance of $670.40 and took an assignment from tbe plaintiffs’ attorney of tbe benefit of tbe balance of tbe judgment so satisfied by him, and sued out an execution to coerce payment from bis co-defendants in tbe judgment.

This suit in equity was brought by said Q. J. Taylor, S. P. Taylor and J. G. Taylor to enjoin the collection of the judgment and execution assigned, on the alleged ground that Merrill was jointly bound with O. J. Taylor as the principal obligor in the debt, and that S. P. Taylor and J. G. Taylor were only sureties in the debt for both 0. J. Taylor and Merrill, and that said sum of $587.25 was when paid by Taylor his equal half of the debt exclusive of sheriff’s commissions which he also paid thereon.

These and other averments of the petition, and the answer of the defendant, presented the qustions, 1st, whether or not 0. J. Taylor was alone the principal obligor in the debt and Merrill and S. P. Taylor and J. G. Taylor were alike his sureties, and, 2nd, whether as between 0. J. Taylor and Merrill an agreement existed by which the latter was bound to pay the entire debt although both were principals so far as the other obligors were concerned.

The court on hearing the cause seems to have been of the opinion that S. P. Taylor and J. G. Taylor were sureties of both Merrill and C. J. Taylor, but that as between the latter, Taylor was bound by an agreement to pay the debt in consideration of the partnership means and assets left in his hands as alleged by Merrill, and accordingly the court perpetuated the injunction in favor of S. P. Taylor and J. G. Taylor, but dissolved it as to G. J. Taylor and dismissed the petition as to him but without prejudice to his right to have a settlement of the partnership.

And from that judgment Merrill has appealed to this court.

It is not controverted that G. J. Taylor and Merrill were principals in the debt until its removal on the 20th of March, I860. Neither is it controverted that they were partners when the original debt was created; and although when the last note was given, Merrill professed to execute it as surety for C. J. Taylor and affixed the word “surety” to his signature, which may have been presumptive notice to the parties who subsequently signed the note of the character in which he assumed to bind himself thereby, these facts did not make him the co-surety of S. P. and J. G. Taylor, unless he had ceased to stand, as between him and O. J. Taylor, in the attitude of a principal in the original debt. The averments of his answer, so far as Miller’s testimony goes to sustain them, are in effect that on the dissolution of the co-partnership, G. J. Taylor undertook to collect the means of the firm and out of funds so to be realized to pay the debts. This did not change the character of Merrill’s responsibility from principal to surety iu the debts, uor divest him of his interest in firm assets remaining in his partner’s hands, but was simply an agreement by which when fully carried out he might be relieved of responsibility for the debts, and until so relieved, the debts were his own as well as Taylor’s.

Bramblett & Son, Winfrey, for appellant. Baker, for appellees.

It seems to us the circuit court construed the transaction as between the original debtors, and S. P. and J. Gr. Taylor, and held the latter two to be the sureties of both the others, and therefore properly perpetuated their injunction. As C. J. Taylor has not appealed from the judgment, we do not decide whether the court did not properly regard Merrill as a surety as between them; he having signed the note as surety — with O. J. Taylor’s knowledge.

Wherefore, the judgment is affirmed.