Williams v. Leslie.

sion on an estimated or agreed price for the land. This was doubtless intended to indemnify the agent for the cost of properly advertising the property, and putting it before the public for sale. In consideration of the agent's diligence in that regard, the owner of the land agreed that whether he withdrew it from sale, or sold it himself, or through any other agency, within the space of nine months, he would in any event pay the appellee a stipulated commission. After the expiration of nine months, if a sale had not been consummated meanwhile, the agent took the chance that his principal might withdraw the property from sale, or sell it himself, or by any other agency, without liability to him, subject only to the contingency provided for in the last clause of the contract.

The effect of that clause was, that in the event of a sale, where, or by whomsoever consummated, if made to a customer introduced through the agency of Leslie, that is, if the latter was the producing cause of the sale, he was to have his commission. The complaint alleges that the sale was consummated to a customer introduced through Leslie's agency. He was the efficient cause of bringing the vendor and purchaser together. By the very terms of the contract he was entitled to compensation, whether the sale was consummated within nine months or not.

The agent was entitled to his commission when he had procured and introduced a party with whom his principal was satisfied, and who actually purchased the property at a price. satisfactory to the owner. Wharton Agency, section 328.

The complaint stated a good cause of action, and there was no error in the ruling of the court.

Judgment affirmed, with costs.

Filed May 20, 1887.

Faurote et al. v. The State, ex rel. Saxon.

No. 12,302.

FAUROTE ET AL. v. THE STATE, EX REL. MILES.

From the Henry Circuit Court.

J. A. New and J. W. Jones, for appellants.

D. S. Morgan, for appellee.

MITCHELL, J.-This was a suit brought on the relation of Richard S. Miles, against Faurote and Brown as principals, and Lewis, Brown and Cranor as sureties, on a certain bond executed by them to secure the completion of a gravel road in Rush county. The action was brought to recover for work and labor performed by the relator in the construction of the work, and also to recover for work and labor, materials furnished, etc., by others, whose accounts had been assigned to the relator.

The facts specially found by the court show, that the contract for the construction of the gravel road had been duly awarded to Faurote and Brown, and that they had executed a bond payable to the commissioners of Rush county, to secure the completion of the contract.

After the contract had been let and the bond executed, the work was sublet by the contractors to one Thomas Cooney, who agreed with them to furnish all the materials, tools and labor, and construct and complete the work, according to the contract and specifications. All the debts sued for were contracted by Cooney, while engaged in constructing the work, the finding being that " said Faurote and Brown did not incur or contract any of the indebtedness sued on in this action."

The conclusions of law stated by the court were, that Faurote and Brown, and their bondsmen, were nevertheless liable on the bond for the indebtedness so contracted.

The pleadings and special finding of facts present the same questions as those considered in the case of Faurote v. State, ex rel., 110 Ind. 463.

Upon consideration of the question of the liability imposed by a bond such as that sued on, we arrived at the conclusion in the former case, that the bond constituted a guaranty for the faithful performance of the work, and that the contractor should pay all debts incurred by him in the pros ecution thereof, and that hence the liability upon the bond did not extend to debts incurred by a sub-contractor.

Adhering to the conclusion reached in that case, it follows that in the case before us we must hold that the court erred in its conclusion that the plaintiff below was entitled to recover from the bondsmen the debts incurred by the sub-contractor, Cooney.

Judgment reversed, with costs.

Filed May 14, 1887.

No. 12,438.

FAUROTE ET AL. v. THE STATE, EX REL. SAXON.

From the Henry Circuit Court.

J. A. New and J. W. Jones, for appellants.

D. S. Morgan, for appellee.

MITCHELL, J.- It is conceded that the questions presented by the record in this case are identical with those presented and determined in the case of Faurote v. State, ex rel., 110 Ind. 463.

For the reasons given in that case the judgment is reversed, with costs.
Filed April 20, 1887.

IN THE

SUPREME COURT OF JUDICATURE

OF THE

STATE OF INDIANA,

AT INDIANAPOLIS, MAY TERM, 1887, IN THE SEVENTY-FIRST
YEAR OF THE STATE.

No. 12,370.

POST, ADMINISTRATOR, v. LOSEY ET AL.

MARRIED WOMAN.-Surety for Husband.—Mortgage.—A mortgage executed
in 1875 by a married woman upon her separate property to secure her
husband's debt, was valid, under the law then in force.
SAME.-Extension of Time of Payment of Debt.—Release of Surety.—A wife,
who is surety for her husband, will be released from liability the same
as any other surety, by an extension of the time of payment of the debt
without her consent, and the lien of a mortgage executed by her to
secure it will be discharged.

SAME.-Mortgagee Bound to Inquire as to Consideration of Mortgage.—A person
who accepts a mortgage upon the land of a married woman, knowing
her to be married, and that the land is her separate property, is bound
to inquire as to the consideration, and unless misled by her conduct
or representations, he will be held to have acquired knowledge of
the facts which prudent inquiry would have disclosed.
PRINCIPAL AND SURETY.-Mortgage.-- Bankruptcy.—Discharge of Principal.
-The lien of a mortgage given by a surety to secure a debt of the prin-
cipal, is not released by the latter's discharge in bankruptcy.
SAME.-Discharge of Bankrupt as to Surety.-Proof of Claim.-A debtor is

(74)

Post, Administrator, v. Losey et al.

relieved from liability to his surety by his discharge in bankruptcy, whether the surety proved the debt against his estate or not. SAME.-Moral Obligation of Bankrupt to Pay Debt.--Consideration for New Promise.—After his discharge in bankruptcy a debtor is released from legal liability to pay a prior debt, but not from the moral obligation, and the latter will constitute a sufficient consideration for a promise to pay such debt.

SAME.-Agreement to Extend Time of Payment.—Endorsement on Note.— Alleration of Contract.-Where, after his discharge in bankruptcy, the principal debtor and the creditor agree to an extension, for a definite period, of the time of payment of the debt, and to a reduction in the rate of interest, in consideration of which the former agrees to pay the debt at the time stipulated, and the agreement is endorsed on the back of the note originally given, the face of the note and the endorsement are to be construed together, and together they constitute the contract between the parties. Huff v. Cole, 45 Ind. 300, and Bucklen v. Huff, 53 Ind. 474, distinguished.

SAME.-Husband and Wife.-Mortgage.-Alteration of Contract.-Release of Surety. Where a married woman, in 1875, as surety, joined her husband in the execution of a promissory note, and executed a mortgage upon her separate property to secure it, and the husband was subsequently discharged in bankruptcy, after which, the creditor having knowledge of all the facts, an agreement to extend, for a definite period, the time of payment of the note and to reduce the rate of interest, in consideration of which the husband stipulates to pay the debt, is entered into between the creditor and the husband, without the wife's consent, and endorsed upon the back of the note, there is such an alteration of the contract as releases the wife's property from liability..

From the Marion Superior Court.

S. Claypool and W. A. Ketcham, for appellant.
C. Byfield and L. Howland, for appellees.

ZOLLARS, C. J.—On the 2d day of September, 1875, Robert C. Losey, for his own use and benefit, borrowed of appellant's decedent, Jacob Hubner, a sum of money to be repaid in three years.

As evidence of the debt created by the loan, Robert C. Losey and his wife, Emma J., appellee herein, executed and delivered to said decedent a promissory note. At the same time, and to secure payment of the note, Emma J., her husband, Robert C., joining, executed and delivered to said de

Post, Administrator, t. Losey et al.

cedent a mortgage upon her separate real estate. She executed the note and gave the mortgage as surety for her husband, and in no other capacity, the money neither having been borrowed nor used by her, nor used for her benefit in any way to make her property primarily liable.

On the 6th day of August, 1878, Robert C. Losey was discharged in bankruptcy from all of his debts, including said

note.

On the 29th day of September, 1878, he and the decedent, payee of the note, without the consent or knowledge of Emma J., entered into an agreement, which they endorsed upon the back of the note, as follows:

"In consideration of the extension of time for three years. from September 2d, 1878, and the reduction of the rate of interest from ten per cent. to six per cent. per annum, I hereby assume to pay promptly the interest at six per cent. semiannually, and the principal of the within note on or before September 2d, 1881. R. C. LOSEY."

Subsequent to said agreement Robert C. paid several instalments of interest on the note. At the time the note and mortgage were executed, and at the time the above written agreement was made, the payee and mortgagee knew that Robert C. and Emma J. Losey were husband and wife; that the real estate mortgaged was her separate property, and that she executed the note and mortgage as surety for her husband, and in no other capacity.

The above are substantially the facts specially found by the court below. Upon those facts the court rendered judgment in favor of the plaintiff, against Robert C. Losey, for the amount of the note, and for Emma J. for costs, having concluded as a matter of law that, by reason of the foregoing facts, the mortgage was discharged and satisfied, and her real estate released.

The question for decision here concerns the rights of the wife, Emma J. Under the present statutes, a wife may not mortgage her separate property to secure her husband's debts..