CUMMINS v. LINE.

CUMMINS v. LINE.
1914 OK 469
143 P. 672
43 Okla. 575
Case Number: 3660
Decided: 10/13/1914
Supreme Court of Oklahoma

CUMMINS
v.
LINE.

Syllabus

¶0 PRINCIPAL AND SURETY--Contribution Between Sureties--Defense--Bills and Notes. Where a negotiable note passes from the payee to a holder in due course, and such note, after maturity, is paid by a surety, a failure of consideration between the maker and the payee is not available as a defense in an action for contribution by a surety against his cosurety.

H. W. Morgan, for plaintiff in error
A. J. Morris, for defendant in error

LOOFBOURROW, J.

¶1 The pleadings and evidence in this case show that one G. W. Statton held a lease on certain Caddo Indian lands in Caddo county; that he attempted to assign such lease to one H. B. Siens; that as a consideration for such transfer Siens executed a negotiable promissory note, payable to G. W. Statton, in the sum of $ 300; that the plaintiff, Cummins, and defendant, Line, signed said note as sureties; that the note was transferred in due course to the Oklahoma State Bank of Chickasha; that some six or eight months after the execution and delivery of the note plaintiff, Cummins, learned that the lease could not be legally transferred because the same required the approval of the Secretary of the Interior, which approval was refused; that the note became due and the plaintiff paid the same to the Oklahoma State Bank of Chickasha. Thereafter plaintiff commenced this action for contribution against Sherman Line, defendant, as cosurety. The case was originally filed in the justice court, judgment rendered, and an appeal had to the county court of Caddo county, wherein a jury was impaneled, plaintiff offered his testimony and the court sustained a demurrer thereto, and directed a verdict in favor of the defendant. From this action of the court the plaintiff appealed. The defendant, in his answer, admitted the execution of the note, but alleged that the consideration for the same was the transfer of an Indian allotment without the consent of the Secretary of the Interior, and for that reason the note was invalid and without legal consideration. The plaintiff sought to meet this answer by amending his bill of particulars, and alleging that after the note was executed and delivered, and after they discovered that the lease could not be transferred, the defendant promised at different times to pay his share of the note as a cosurety. That a surety who pays a note is subrogated to all the rights of the holder of the note cannot be questioned. See McClure v. Johnson,

¶2 All the Justices concur.