121 Ala. 373 | Ala. | 1898
— It is conceded by counsel for appellant that the defendant Avas a surety for Abernathy after the acceptance by the plaintiff of his promise to pay the four promissory notes held by it, executed by the defendant, aggregating the sum of $2,800, each for $700, dated November 30, 1886, and due respectively one, tAvo, three and four years after date, with interest, for the purchase of certain lots sold by plaintiff to defendant. The mortgage executed by Abernathy and the deed from plaintiff to him and the agreement executed by plaintiff and Abernathy extending the time of payment of the debt assumed by him, with defendent, of date. March 4th, 1889, are practically the same in substance and legal effect as those construed by this court in Hodges v. Blyton Land Co., 109 Ala. 617. The distinctive difference between the facts of that case and this one, grows out of the fact that
On the 12th day of October, 1888, Abernathy, the principal, owed to the plaintiff three notes of $700 each, with
As said in Mobile Life Ins. Co. v. Randall, supra, “When a note or bill is thus taken in consideration of a pre-existing debt, there may be no express agreement that indulgence shall be given on the original debt until the maturity of the note or bill; nor an express agreement that indulgence or forbearance is the consideration; the parties-must be presumed to intend the legal consequences of their acts, and as the legal consequences are the tying up the hands of the creditor during the period, the right of action on the original debt is-suspended, securing indulgence to the debtor for that period, the transaction has the legal effect it would have, if, in express terms, it had been stipulated such effect would result. The creditor suffers the detriment, the debtor obtains the benefit, which would be suffered or derived, if in words, the legal consequences of the transaction had been expressed as matter of agreement.”
Were the notes of Abernathy delivered to the plaintiff on the day of their date? The presumption is, that they
The introduction of these notes in connection with the bond for title and assignment thereof by defendant to Abernathy proved the facts alleged in his fourth plea and shifted the burden of proof upon the plaintiff to prove the facts alleged in his special replication thereto. In this replication, it is alleged that the notes of Abernathy of date October 12, 1888, were executed contemporaneously with the agreement of March 4, 1889, preserving the rights of the defendant as surety. The only evidence relied upon in support of this replication, it not being disputed that the defendant knew nothing of the execution of the notes, is the recitals found in this agreement, the mortgage of Abernathy to secure his notes, and the deed from plaintiff to him to the land. There is nothing in either of these instruments which tends in .the remotest degree to contradict the date of the notes as it appears on them. On the contrary in each of them, Avherever reference is made to the notes, the words “has executed” áre invariably used; and we may add the conclusion is inevitable from the evidence, that the agreement was an after-thought,.and not in the contemplation of the parties on the day the notes were executed. Besides, the dates fixed for the maturity o.f the installments, being respectively April 12th and October 12th, are to our minds conclusive of their delivery on the date they bore date.
The defendant was discharged from liability when the agreement of March 4 was made, and therefore he cannot possibly be affected by any of its terms.
What we have said renders it unnecessary to review the rulings of the court upon the pleadings.
The judgment of the court must be affirmed.
Affirmed.