The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-06-26
THE COURT RECORD.
Supreme Court-June rs, 1885.
POINTS OF DECISIONS.

POINTS OF DECISIONS.
No. 11471. Noah S. LaRose ct al. VS.. The
Logansport National Bank. White c. G. Affirmed.
Mitchell, 9. j. Elliott IL collars ~. dissent
Oscar NJ. Goodwin, as cashier of appellee, de-
faulted. Appellants as s~ureties on his bond,
which provides that whereas said Goodwin was
appointed cashier of said bank on Jan. 8, 1878.
to hold during the pleasure OF the directors. IL
he discharge faithfully his duties during contlnu-
ance of his Office and keep, account for and pay
over all moneys. etc., belonging to said bank, and
notes, bills, ETC., which shall come into his
possession to the directors, the bond shall
be void. otherwise, etc. 1t is claimed that TINS
undertaking constitutes a contlnuancy guaranty
and is collateral to the original contract. Where
the engagement is that another, who is liable In
the first instance, will pay a debt or perform an
obligation, and that upon default OF other,
the promisor will answer for the default, the
contract is one of guaranty. The engagement
of a surety is that in the event his principal
fails, he will perform the original obligation,
and whether it is entered into Jointly with the
principal, or separately. the extent and character
of the obligation is the same as to both depending
only upon the form in which 1t Is expressed.
Whether the contract is entered into separately
or jointly with the principal, If by its terms 1t
appears that the principal Is separately bound
by an original, independent contract to which
the contract for security is collateral and the
obligers agree that the principal will pay or
perform according to his original engagement,
and that they will answer for his default in the
event of failure, they become guarantors. Good
wins bondsmen agreed that he had the requl-
site qualifications to discharge his duties.
as assumed by his engagement to the
bank. They did not agree in his failure
to discharge the duties that they would
discharge then. They are guarantors, and the
fact that Goodwin joined in the collateral agree
ment makes no difference. A guarantor Is en-
titled to notice of the default of his principal.
Such failure, except in cases governed by com
mercial rules, is a matter of defense; and with
such failure resulting damage must concur TO
work a discharge Of the guarantors. A bylaw OF
the bank provided that the cashier should be
responsible for all monies. This does not mean
that he should be in exclusive control
of them to fix. his liability. 1t is a
matter of judicial knowledge that
some one besides a cashier must have access to
the funds. The cashier should be held RESPONSE
BILE that the funds should be properly accounted
for according to his duties as cashier. TIL fact
that the bond was executed fourteen days after
Goodwln's appointment does not make it invalid.
The guarantors notified the bank that Goodwin
was addicted to vices, gambling, drunkenness,
and demanded his discharge. The misconduct
of which the employer has knowledge and which
will release the guarantor if concealed, must re-
late to the service in which the person whose
conduct is guaranteed is engaged and must be
something more than mere moral delinquency,
having no connection. with the subject-matter OF
the guaranty. The bank agreed to discharge
him, but before compliance, the defalcation
OCCuFreu. LII uOeS uOb appear low OHS UclUIc
the defalcation the notice was given. Assuming
they had the right upon reasonable notice to the
directors to revoke their guaranty they must
exercise this right reasonably. A bank cannot
be expected to subject its affairs to embarrass-
ment by an immediate discharge of it's cashier.
No. 1923. James III. Cunningham ct al. VS..
Evansville & Terre Haute Railroad Company.
Knox G. G. Reversed. Howk. J.-Suit by APP
p~ellants to recover damages for the destruction
of a starch glucose works by the negligence OF
oa1 -;%h4x hat nyr n N
part of appellants, in failing to supply its engines
with suitable spark arresters, so that sparks
were suffered to escape. Appellee answered that
appellants works were insured, and that the in
surance companies had paid them $50, 224. 90,
which covered the loss; therefore appellants had
no right of action, and the insurance
companies became subrogated to the right. The
contracts of appellant for the insurance of their
property and their subsequent conduct in rela-
ton thereto are matters in which the appellee
as wrong doer had no concern, and which do not
affect the measure of its liability. (35 N. j.,
400; 1O3, Mass. 219; 105 Mass, 213; IL Mich,
At; 38 Barb. $50; 81 Ill, 1873; 80 Me-. 253.) The
fact that the insurance companies paid the loss
did not constitute any defense.
No. 1907. George c. Deeters Us. Perry Sci.
lers, ct al. Whitley c. G. Affirmed. Elliott j.
"A mortgage by one partner of partnership
property for his individual debt conveys no title
or lien as against the partnership or its creditors.
Such a mortgage cannot deprive his co-partner
of the right to the possession of the partnership
property. The mortgageor is entitled to only
what remains after satisfying the debt of the
partner.
No. 1864. Abraham Harper VS.. State ex rel.
Laura Adamson. Hamilton G. @. Rehearirg
denied.
No. 1913. Lawrenceburg Furniture Manu-
featuring Company ct al. VS.. John Hinke. Dear
born G. c. Rehearing granted.
No. 1926. Henry G. Hedges ct al. VS.. Ce-
celia Keller ct al. Huntington c. G. Motion to
dismiss overruled
No. 12308. III. Metcalf VS.. James McFadden.
Huntington G. G. Dismissed, and leave granted
appellant to file bond and perfect appeal, and to
withdraw papers from the files.