Kelty v. Jenkins — 1 Hilt. 73

Majority

p. 73

Gibbons L. Kelty and Daniel M. Ferguson v. Elisha F. Jenkins and Daniel M. Hughes.

Headnote

The payee and first indorser of a promissory note gave to the holders, at its maturity and in renewal, his own note, indorsed and secured by a pledge of stock, for the purpose of obtaining an extension of time. It was accepted by the holders. Meld, that this arrangement, having been made without the knowledge of the second indorser, discharged him.

A notice of appeal should specify, with distinctness, the errors alleged to have been committed by the court below, to rectify which the appeal has been taken. A general statement, “ that the judgment is nnsustalned by and contrary to law and evidence,” is insufficient.

• Appeal from o. judgment of tbe Marine Court. Tbis was an action against tbe defen dan to as indorsers of a promissory note. Tbe defendant Hughes alone defended. It appeared upon tbe trial that tbe note, which was made by one Sa-xton. was Adorned by tbe defendants solely for tbe makers «.cccmmodaticu Vhcm

p. 74

it became due, tbe defendant, Jenkins, told tbe plaintiff tbat tbe maker promised to provide funds in about four months to meet tbe note, and requested tbe plaintiffs to take bis individual note, secured by stock, wbicb they accepted. Tbe defendant Hughes knew nothing of this arrangement. Judgment was rendered in bis favor, from wbicb tbe plaintiffs appealed. Tbe notice of appeal made no other specification of tbe ground of appeal, than tbat tbe judgment was unsustained by and contrary to law and evidence.

R. Busteed, for tbe appellants,

quoted, Bailey on Bills, chap. 9, p. 338-340 (5th ed.); Sargent v. Appleton, 6 Mass. R. 85 ; Calli'han v. Tanner, 3 Rob. (La.) R. 299; Philpot v. Briant, 4 Bn^. -R. 77; Chi tty on Bills, chap. 9, p. 442-447 (8th ed.); Bank of U. S. v. Hatch, 1 McLean R. 93 ; McLamore v. Powell, 12 Wheaton R. 554; Planters' Bank v. Sellman, 2 Gill. & John. 230; Margesson v. Gable, 2 Obitty’s R. 364.

John 0. Robinson, for tbe respondent,

quoted, Church v. Barlow, 9 Pick. 547 ; Seabury v. Hungerford, 2 Hill, 82 , 84; Bangs v. Strong, 7 Hill, 250 .

It appears tbat when tbe note in suit became due, Jenkins, tbe payee, called upon Ferguson, one of the plaintiffs, and told him that tbe maker bad promised to place funds in bis (Jenkins’) bands, to meet the note in four months, and proposed to give bis (Jenkins’) indorsed paper at four months in renewal, offering, as an inducement, ample security in stock. Tbe proposal was accepted. Jenkins placed tbe security in Ferguson’s, bands and the paper in renewal was given. This arrangement was entirely without tbe knowledge of Hughes, tbe second indorser.

This was an express agreement to give time to tbe maker and payee, founded upon a good consideration, and operated to discharge Hughes. Bank of Utica v. Ives, 17 Wend. 501 ; Gahn v. Niemcewicz, 11 id. 312. It was not a mere indulgence, at tbe

p. 75

will of tbe plaintiffs, but, by accepting tbe indorsed paper of Jenkins in renewal, in consideration of tbe security placed by bim in tbeir bands, they suspended tbe right of action upon tbe original note, until tbe maturity of tbe paper taken in renewal (Putnam v. Lewis, 8 Johns. 889 ), and thereby discharged Hughes; that agreement having been entered into without bis knowledge or consent.

Tbe notice of appeal, moreover, was defective in not setting forth tbe grounds of appeal. To say that “ tbe judgment is un-sustained by and contrary to law and evidence,” is a notice that might be given in every case, and would be a mere formality, furnishing no information whatever, to tbe opposite party or to tbe court, of tbe grounds upon which tbe appeal was brought. Tbe notice should specify, with sufficient distinctness and cUfc tainty, tbe error or errors committed by tbe court below, to rectify which tbe appeal has been taken.

Judgment affirmed.

Cases cited

Bank of Utica v. Ives 17 Wend. 501 N.Y. Sup. Ct. p. 74