29 Iowa 514 | Iowa | 1870
In December, 1868, Graham, who was a banker, and then believed to be solvent, let plaintiff have certain notes and a judgment, amounting with interest, to something over two thousand dollars, upon responsible parties, and at the same time received from plaintiff some money. As to the true nature of this transaction the parties differ very widely. Plaintiff says he bought the notes and judgment, paying therefor $750 : and that said transaction was in no manner connected with the $7,000 note. Graham¡ however, says, that being in great need of money, he negotiated these securities, receiving so much money ($262.50), plaintiff depositing at the same time, to help him in his stress, $500, the balance (some $1,820) being paid as interest on the large ($7,000) note, the same being calculated at about three per cent per month.
Looking at the entire testimony, we think it propon
Every proposition of law stated by appellee’s counsel
These rules are conceded, and we take no time to discuss either their reason or propriety, or to examine the cases in their support. But while it may, in morals, perhaps, be unjust for the creditor, by his delay, without fraud or collusion, to increase the liability of the surety to pay the debt, it is not true that mere delay, though followed by the insolvency of the principal, will discharge the surety. The delay to sue Graham, therefore, did not release' the sureties. And this, because they were not misled; because they themselves were in default; because it was their duty to pay ; because they could judge as well as plaintiff of the dangers of delay; and because by notice they would have stimulated plain
And as to the implication arising from the alleged advance payment of interest, we have only to say, admitting the rule for which counsel contend, that it cannot apply, when it would defeat the clear intention of the parties. If the creditor manifestly intends to hold the sureties, and it is obvious that he refused to extend the time, the simple act of the advance payment of interest will not justify the influence or implication that there was such an agreement.
Let the judgment be reversed, and cause remanded for trial de novo.
Eeversed.