77 Wis. 486 | Wis. | 1890
After a careful consideration of all the evidence in this case, we are very strongly impressed that the verdict is not supported by the evidence, and ought to have been set aside by the learned circuit judge on the motion of the appellant. Everything -which was said and done by the bank officers at the time the interest in advance was paid on these notes on the 18th of October, 1888, shows very clearly that not only Mr. Reynolds understood that in consideration of the payment of such interest the time for the payment ’on such notes should be extended, but the bank or its agents so understood it, and gave Reynolds the right to so understand it. In the first place, Mr. Bentley, the cashier, does not in his testimony in any way contradict Mr. Reynolds as to what conversation was had between them at the time the interest was paid; and Reynolds says: “ Bentley told me if I would pay the interest in advance they would carry me.” Again, he says: “ I asked them to extend my paper, and he said he would if I paid interest.” As affirming the truth of the statement made by Reynolds, we have the fact that the indorsement on the back of the notes of the time when the same would become due was changed on the $1,000 note from September I, 1888, to December 9, 1888, and then again from December 9, 1888, to February 10, 1889, and on the $1,500 note from October I, 1888, to January 8, 1889. This was not only done immediately upon the payment of the interest in advance, but the notes were placed with other notes becoming due at the same time, to wit, December 9, 1888, and January 8, 1889; and it is fully admitted that thereafter no call, either upon Reynolds or the appellants, for the payment of these notes was made until the $1,500 note was about due, January 8, 1889, and until the $1,000 note was about due, February 10, 1889. All the acts and conduct of the bank officials tend very clearly to establish the contention of the appellants that the time for the payment of these notes was extended as claimed by them.
This being the rule, there does not seem to us to be any evidence in this case which should be permitted to defeat the appellants’ claim that the time for payment had been extended without the assent of the sureties. It is possible that the cashier, Bentley, did not intend to release the sureties on the note, but it seems to us very clear that he consented to an extension of the time of payment to Reynolds when he received the interest in advance, and if he so extended the time to Reynolds with no intent to discharge the sureties, still the sureties are discharged in law by the extension of time of payment to the principal debtor without their assent, and the intention of the cashier cannot change the result.
We think there is a greal deal of good, sound sense in the remarks of Lord Baron Ltudhuest, in the case of Blake v. White, above cited. He says: “ If it appeared simply that six months’ interest had been given, what could the imagination suggest but a contract ipsissimis verbis that the creditor should not sue for that time. Besides, the interest being paid, would a court of equity endure that the creditor should put that interest into his pocket, and the next
We think the learned circuit judge should have set aside the verdict in this case on the ground that it was entirely unsupported by the evidence.
By the 'Court.— The judgment of the circuit court is reversed, and the case is remanded for a new trial.