173 P. 935 | Or. | 1918
Section 5952, L. O. L., provides:
“A negotiable instrument is discharged (1) by payment in due course or on behalf of the principal debtor; (2) by payment in due course by the party accommodated, where the instrument is made or accepted for accommodation; (3) by the intentional cancellation thereof by the holder; (4) by any other act which will discharge a simple contract for the payment of money; (5) when the principal debtor becomes the holder of the instrument at or before maturity in his own right.”
This section enacts in definite terms that the instrument, and hence one primarily liable thereon, is discharged in one of five different ways. There is no mention therein of a discharge of an accommodation party by an extension of time, or by other acts such as would discharge a surety before the passage of the negotiable instrument law. It could then be shown that one signing a promissory note apparently as one of the makers was in reality a surety thereon, and as such surety was a favorite of the law, the payee was required to guard his interests with zealous care, although he was an accommodation maker. This in many instances worked a hardship upon the payee or holder of the instrument, and by the negotiable instrument act an accommodation party was taken out of the secondarily liable class, as it were, and classed with the makers of the note, and declared to be primarily liable on the instrument, and absolutely required to pay the same. It was therefore the duty
The manner in which one who is secondarily liable on a note may be discharged is defined by Section 5953, L. O. L., which is as follows:
“A person secondarily liable on the instrument is discharged (1) by any act which discharges the instrument; (2) by the intentional cancellation of his signature by the holder; (3) by the discharge of a prior party; (4) by a valid tender of payment made by a prior party; (5) by a release of the principal debtor, unless the holder’s right of recourse against the party secondarily liable is expressly reserved: (6) by any*105 agreement binding upon the holder to extend the time of payment, or to postpone the holder’s right to enforce the instrument, unless made with the assent of the party secondarily liable, or unless the right of recourse against such party is expressly reserved.”
In our judgment, the answer does not support defendant’s defense. If he had been fully informed in regard to the note, as he claims he should have been, he asserts that he could have protected himself. To
The answer of defendant does not state a defense to the note. There was no error in sustaining the demurrer. The judgment of the lower court is affirmed. Aeetrmed.