Miller v. Montgomery

31 Ill. 350

• Court: Illinois Supreme Court
• Decided: April 15, 1863
• Status: Published

Opinion

Mr. Chief Justice CatoN

delivered the opinion of the Court.

The error in this case is manifest, upon a mere statement of the facts. The note was executed to the plaintiff by Don-nelly, as surety, and the other defendants, as principals; the plaintiff refusing to take the note, unless Donnelly signed it as surety. Subsequently, Miller, one of the principals, paid the plaintiff one hundred and seventy-five dollars, with express instructions that it should be applied on this note; which the plaintiff agreed to, and promised to indorse it on the note, but neglected to do so. Afterwards, by an arrangement between the plaintiff and Miller, a part of this payment, at least, was applied to other indebtedness due from the principals in the note to Montgomery, and the court below, by its instructions, allowed this payment to be so diverted, and a recovery to be had against the surety. This was manifestly erroneous. When the payment was once applied to the note, it was that instant extinguished to that extent, and could never afterwards be revived against any of the parties to the note without their consent. Miller might as well have signed a new note-for Donnelly, as to revive his obligation upon an old one, which had been, in fact, paid. No question of a Iona fide holder arises in this case. The plaintiff was cognizant of all the facts, and it was a fraud upon Donnelly to attempt, by a subsequent agreement of Miller, to revive the extinguished liability of the surety. The instructions should have been given.

The judgment is reversed, and the cause remanded.

Judgment reversed.