State Solicitors' Co. v. Savage
State Solicitors' Co. v. Savage
Opinion of the Court
The decision of this case in the Circuit Court on its merits was in favor of the defendants under pleas interposed by them, and as the testimony of the parties placed all the facts before the court, and which are now in the transcript before us, we will dispose of the case on its merits here.
It was shown that the title to the real estate described in the mortgage executed by appellees was in-the wife, Sarah J. Savage, and that the mortgage was executed to secure and give credit to a note of $1,500 executed by C. C. Sutton to Charles Swayne. It was well understood by all parties, the mortgagors, as well as the maker and payee in the note, that the object was to raise money by negotiating the papers, and to this end|they were executed and placed in the hands-of Charles Swayne. There is some conflict in the evi- ■ dence as to whether Savage and wife were to share in the funds to be derived from the negotiation of the note, and also as to the amount that should be realized therefrom. Appellees testify that the note was-
It is not necessary that we decide upon whose side the weight of the evidence lies in reference to the conflict mentioned, as we are of the opinion that the decision reached in the Circuit Court was erroneous, conceding that appellees are right in their contention in reference to the amount for which the note was to be negotiated and the share they were to have in the funds realized therefrom. It is certain that the note .and mortgage were executed and delivered to the payee named therein for negotiation, and that in a few days thereafter, and long before the maturity of the note, he sold the same to appellant. The latter had no knowledge at the time of the purchase that the note ■and mortgage had been delivered to the payee named -simply for negotiation, and the purchase was made •from him as owner and holder for value.
The decision of the Circuit Court evidently was based upon the view that appellees were sureties of Sutton, and that by the endorsement made on the note and mortgage, as shown in the statement, at the time of their transfer to appellant, the note was materially altered, without the knowledge and consent of appellees, and that they became released and discharged thereby. To sustain this conclusion the familiar rule is invoked that a surety can only be held liable by the letter of his engagement, and that any material alteration of its terms between principal and creditor, without the surety’s consent, will avoid the obligation
The suit here is to foreclose a mortgage containing a covenant to pay the note given by Sutton for $1,500, and also to pay that sum of money. The conclusion we have reached makes it unnecessary to determine anything in reference to appellant’s right to enforce the foreclosure of the mortgage independent of the question of the alteration of the note given by C. C. Sutton to Charles Swayne. As there has been no alteration of said note, the court should have overruled the pleas and granted a decree of foreclosure of the mortgage; and the decree rendered will be reversed, with directions to enter such a decree, and for such further proceedings in the premises that may be consistent with the practice of the court. Order to be entered accordingly.
Reference
- Full Case Name
- State Solicitors' Company, a Corporation Existing under the Laws of Pennsylvania v. Thomas E. Savage, et ux.
- Cited By
- 4 cases
- Status
- Published
- Syllabus
- 1. A surely is liable only to the extent of liis engagement, and where a promissory note upon which he is bound as surety has been materially altered without his consent, it will be avoided as to him. 3. A material change in the original agreement can not be said to have been attempted by any alteration of the written evidence of it, when a new and distinct agreement is made and endorsed upon it in such a manner as to show that the endorsement is of a new agreement, in no way altering or affecting the language of the original agreement. 3. A executed a note for $1,500, payable to B or order, and C and wife executed a mortgage to B on real estate to secure the note. The note and mortgage were executed and delivered to B, for purposes of negotiation, and before maturity he negotiated the same for $1,000 to a purchaser without any knowledge of any understanding between the parties in reference to the negotiation, at the same time writing on the face of the note below the signature of the maker'the following: “Pay :to the order of the Solicitors’ Company, Philadelphia, the said principal sum being reduced to one thousand dollars,” and .also endorsing upon the mortgage that, “the debt due on mote, for which the within mortgage is given to secure, is reduced to one thousand dollars ($1,000)”: Held, that this was not an alteration of the note itself, but evidence of a new and -distinct agreement, and in legal effect a credit of $500 on the mote.