120 Mich. 518 | Mich. | 1899
The plaintiff’s action was brought to re
The court instructed the jury that, by the agreement for the purchase of the shingle mill, Carman became the principal debtor, and Meigs & Co. sureties; and he directed the jury to inquire whether, in the subsequent arrangement between Carman and the bank, it reserved the right
It is not every extension of time that discharges a surety.
‘ ‘ If the creditor, at the time he releases the principal, reserves his remedies against the surety, such release amounts to a covenant not to sue only, and does not discharge the surety.” 1 Brandt, Sur. § 147.
In Oriental Financial Corporation v. Overend, Gurney & Co., 7 Ch. App. Cas. 142, Lord Hatherley said:
“It is competent to the creditors to reserve all their rights against the surety, in which case the surety is not discharged; and for this reason: That the contract made with the principal is then preserved, because the creditors have engaged with the principal not to sue him for a given time, but subject to the proviso that the creditors shall be at liberty to sue the surety, and so turn the surety upon the principal without any breach of the engagement with the principal.”
The opinion of Mr. Justice Andrews. in the case of Calvo v. Davies, 73 N. Y. 217 (29 Am. Rep. 130), is to the same effect. It was there said :
“The remedies against the surety are reserved. The agreement does not operate as an absolute, but only as a i qualified and conditional, suspension of the right of action. The stipulation in that case is treated, in effect, as if it was made, in express terms, subject to the consent of the surety, and the surety is not thereby discharged.”
See, also, Hagey v. Hill, 75 Pa. St. 108 (15 Am. Rep. 583); Wyke v. Rogers, 1 De Gex, M. & G. 408; Sohier v. Loring, 6 Cush. 537. Many other cases will be found cited in 24 Am. & Eng. Enc. Law, 830, note 2. The same doctrine is laid down in our own case of Bailey v. Gould, Walk. Ch. 482. If, therefore, the defendant stood in the attitude of .surety, the court committed no
One other question demands notice, and requires a further statement of facts. It has been said that eight notes were sued upon, one of these'being known as “Exhibit A.” This was a renewal of a former note for $1,000, and was sold by the plaintiff, before maturity, to the Mecosta County Savings Bank. When Exhibit A became due, Carman paid Comstock, plaintiff’s cashier, $500 upon it, and a Carman, Bromley & Childs note for $500. The defendant claims that the plaintiff was not the owner of Exhibit A, and therefore had no right of action upon it, and that the admission of testimony regarding it was erroneous. It is said that the jury must have found that the plaintiff owned this note when suit was commenced, although there was no testimony showing it. We find, on examining the record, that Comstock testified that the plaintiff redeemed this note, after it went to protest, by placing in the place of it $500 in cash and one of the Car-man, Bromley & Childs notes. Again he said: “The plaintiff bank got the note by paying a Carman note and the money, after the protest. * * * I paid $500 in cash, and put in a Carman, Bromley & Childs note for $500, and took out this note.” The judge left the question of ownership to the jury, and we think this was right.
But it is urged further that the record shows that the verdict was a- compromise, and that it appears from the following circumstances: A witness testified that the amount due upon the eight notes, including principal and
The judgment is affirmed.