
    No. 177
    PUTKA v. BANKERS COMMERCIAL SECURITIES CO.
    Ohio Court of Appeals, Cuyahoga County
    No. 4123-4-5-6
    SURETY — (1) Part payment of a debt as settlement of the whole — (2) Dismissal without prejudice of a suit against debtor not a bar to suit against surety.
    This opinion has appeared only in The Abstract.
    Error to Municipal Court of Cleveland
   SAYRE, J.:

Epitomized Opinion

June 1, 1920, the Pearl Motor Sales Co. gave to the Seeuritiees Co. a check for $3000 and a bill of sale on eight trucks in the possession of the former. The check and the bills of sale were placed in the possession of one Hyre, with the agreement that he should present the check and, if not honored, should take possession of the trucks. The check was not honored and Hyre took possession of four of the trucks.

June 14, 1920, the Motor Sales Co. delivered to Hyre a note and a real estate mortgage, but the same were not endorsed over to Hyre until December, 1920. The Securities Co. replevied the four trucks in the possession of the Motor Sales Co., the latter meanwhile filing four redelivery bonds upon which Putka became surety.

The Motor Sales Co. passed into the hands of a receiver and suit was brought against the receiver on the redelivery bonds. The Securities Co. later dismissed the case against the Motor Sales Co. and secured judgments against Putka. Held by court of appeals:

1. Delivery to Hyre of the note and real estate mortgage was found by the jury not to be a settlement of the entire claim against the Motor Sales Co. but merely liquidation of the indebtedness. This question was properly left to the jury.

Attorneys — Rocker & Schwartz, for Putka; Hyre & Hyre, for the Securities Co.

2. By 11583 GC. judgment can be taken against the surety alone and a dismissal without prejudice of the debtor does not bar an action against the surety. Judgment of the municipal court affirmed.  