Warder, Bushnell & Glessner Co. v. Johnson
Missouri Court of Appeals
Appeal from Atchison Circuit Court. — Eon. W. O. Ellison, Judge. (1) It is a well-settled rule in this State that a cause of action cannot be changed on appeal and a new cause substituted. E. S. 1899, sec. 4077; 33 Mo. App. 50; 46 Mo. App. 275; 67 Mo. App. 255. (2) The guarantor has the right to avail himself of any defense that the maker has to the contract. 141 Mo. 443, and cases cited. (3) That which avoids the obligation of the principal releases the guarantor. 27 Mo.
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Appeal from Atchison Circuit Court. — Eon. W. O. Ellison, Judge. (1) It is a well-settled rule in this State that a cause of action cannot be changed on appeal and a new cause substituted. E. S. 1899, sec. 4077; 33 Mo. App. 50; 46 Mo. App. 275; 67 Mo. App. 255. (2) The guarantor has the right to avail himself of any defense that the maker has to the contract. 141 Mo. 443, and cases cited. (3) That which avoids the obligation of the principal releases the guarantor. 27 Mo. App. 371. (4) A creditor seeking to charge a person as a guarantor must file a statement with his suit setting up that…
1Opinion of the CourtEllison, J.
The defendant guaranteed the payment of a note given by J. D. Younger to the plaintiff. He was sued before a justice of the peace. The case was *573appealed to the circuit court where plaintiff obtained judgment.
The defendant claims that a different cause of action was tried in the circuit court from that which was tried in the justice’s court. The only paper filed with the justice was the note itself, with defendant’s written guaranty of payment endorsed on the back thereof. It seems that the justice entered on his docket the words, “Action on a note.” From the fact that no separate statement of…
2Cases cited6 opinions
- Hill v. CombsMissouri Court of Appeals · 1902
- D. M. Osborne & Co. v. LawsonMissouri Court of Appeals · 1887
- Randall v. LeeMissouri Court of Appeals · 1897
- Collins v. BurrusMissouri Court of Appeals · 1896
- Baskin v. CrewsMissouri Court of Appeals · 1896
1 more not listed; retrieve them via the Exa API.
3Cited by2 opinions
- Masters v. BoyesSupreme Court of Oklahoma · 1914
- Continental & Commercial National Bank of Chicago v. RickerSupreme Court of Missouri · 1932