21 Ga. App. 284 | Ga. Ct. App. | 1917
Nothing in the defendant’s answer constitutes a valid defense to this suit. The agreement which is. attached as an exhibit to the answer, and the relevant parts of which are hereinbefore set out, undoubtedly grants an extension of time on $1500 of the indebtedness, by taking notes, one for $500 due in two years, and the other for $1000 due in three years, but these notes are not the basis of this litigation. The agreement to extend did not fix any definite period to which the notes sued on were to be extended, but on the contrary the agreement provided “that failure to pay one of the foregoing notes, according to their legal tenor and effect, shall mature all at the option of the holder.” By the “legal tenor and effect” of the notes sued on they became due October 15th, 1913, and March 15th, 1914. Where there is an agreement between the holder and the maker of notes to extend the time of payment, unless it be for a definite period, even though for a valuable consideration, the surety will not be discharged from liability. The first headnote in the ease of Bunn v. Commercial Bank of Cedartown, 98 Ga. 647 (26 S. E. 63), is as follows: “An agreement by the holder and owner of a promissory note with the maker of the same to extend the time of its payment for an indefinite period, though based upon a valuable consideration, does not 'discharge a surety on said note from liability. As such agreement would not prevent the immediate bringing of an action, the making of it really amounts to no more than a mere failure by the creditor to sue as soon as the law allows, or negligence to prosecute with vigor his legal remedies, and it therefore stands upon an entirely different footing from an extension for a definite period. In the former case a surety may at any time pay the debt and proceed to enforce the same against his principal, and he may also proceed against the co-sureties, if any, for contribution. In the latter he can not do this, and consequently his risk is increased and he is discharged.” See also Woolfolk v. Plant, 46 Ga. 422 (2). From the foregoing it will appear that the court did not err in sustaining the demurrer and in striking the pleas.
Judgment affirmed on main bill of exceptions; cross-bill dismissed.
