Hier v. Harpster

Citations

• 76 Kan. 1
• 90 P. 817
• 1907 Kan. LEXIS 212

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Suretyship — Duty of a Creditor to a Surety. Ordinarily a creditor owes a surety no active diligence. The obligation to see that the debt is paid, or that the principal performs, rests upon the surety and not on the creditor.</p> <p>2. - Release of Surety. The plaintiff, who held a note signed by the defendant, as surety, presented it to the principal for payment. The principal, who was the cashier of a bank in which the plaintiff had a deposit, entered a credit in the plaintiff’s pass-book of a sum equal to the amount due on the note, which was then surrendered and marked “paid.” No money was deposited in the bank by the plaintiff, or by any one else, as a basis for the entry in the pass-book. Shortly afterward, the cashier having defaulted and died, a suit was brought by the receiver of the bank against the plaintiff, which pended more than three years, and in which it was held that the note was not paid and that the plaintiff was liable to the bank for the amount credited in her passbook. The surety learned that the note had been surrendered and canceled but did not know of the circumstances of the surrender or that the matter of payment was in contest. No statement was made by the plaintiff to the surety that the note had been paid, nor did she give him the information that the note had been surrendered and marked “paid.” Held, that the omission of the plaintiff to give the surety notice of the facts concerning the surrender of the note and of the contest as to its payment did not absolve the surety from liability on the note.'</p>