Yule

Upon the hearing of this case in Department Two, the following opinion was rendered: —

Upon the rehearing of this cause the court has been urged to reconsider the views above expressed. Under our system of pleading, where all the facts of the transaction are set out, it 'can make little difference, in the generality of cases, whether it be said that an accommodation maker or indorser who has been compelled to meet the obligation of his principal is entitled to sue upon the note, with a recovery limited to the amount which he has expended, with legal interest, or whether it be said that his action is in assumpsit for money laid out on behalf of his principal, and that his recovery is measured by the amount he has so expended, with legal interest. But in this case the question becomes of consequence for the following reason: Plaintiff is seeking to enforce the stockholders’ liability for the debt of the corporation against those who were stockholders at the time when the note in question was executed. If it be held that only these stockholders are liable, the next case to come before us may be one in which the statute of limitations has run against such stockholders, and where the…

Iconcur in the judgment, and in much of the opinion of Mr. Justice Henshaw. I do not, however, assent to that portion of the opinion in which it is held that upon the payment of the note to the bank by Mrs. Blair the obligation of the maker of the note was extinguished, nor to the construction given to section 1473 of the Civil Code. That section is as follows: “Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf and with his assent, if accepted by the creditor, extinguishes it.”

In order that an obligation may be extinguished, under the provisions of this section' there must be a full performance of it by the party “whose duty it is to perform it,” or such performance, if by any other person, must be “ on his behalf and with his assent,” and the obligation which is thus extinguished is that of the person whose duty it was to perform it. In the present case it is not shown or claimed that the payment of the note to the bank by Mrs. Blair was either at the request or with the assent of the corporation, and it is equally manifest from the terms of the note and the character of the transaction that the “duty” of paying…