23 Barb. 478 | N.Y. Sup. Ct. | 1856
The draft or check of Sobermerhorn, upon the Ontario Bank, was received by Summerfield in payment of the demand in question. This expressly appears on the face of the receipt: and no attempt has been made, to show by evidence, that any intention existed to receive it otherwise than as payment—if, indeed, such evidence would have been admissible'—or to show any fraud on the part of Schermerhorn. The draft was negotiable and payable on time. It was, in legal effect, an inland bill of exchange. The effect of the transaction was, at least, to suspend the right of action of the insurance company against Schermerhorn, the principal debtor, until after the maturity of the draft, and until default had been made in its payment. (Tobey v. Barber, 5 John. 73.) And.it operated to discharge the defendants, the Moshers, who •were only sureties, and who had no knowledge of the arrangement, and of course did not consent to it. There is no ground for saying the draft was taken as collateral. It was sub modo, a payment, and the insurance company could not afterwards call on the drawer, until after he had made default in the payment of the draft.
We think the well settled rule of law that where a creditor, by a valid agreement with his principal debtor, extends the time of payment of the debt without the consent of the surety, the latter is discharged, applies in full force to this case. The objection that the obligation of the defendants was by specialty, and that therefore its terms could not be changed by a parol agreement, is unfounded. The time of performance specified in a sealed agreement may be extended by parol. This is too well settled to require authorities to prove.
The judgment should be reversed, and a new trial granted; with costs to abide the event.
Ordered accordingly.
T. R. Strong, Welles and Smith, Justices.]
