| Wis. | Apr 10, 1861
By the Court,
There can be no doubt about tbe correctness of tbe rule of law, that if a creditor does any act injurious to tbe surety, or inconsistent with bis rights, or omits to do any act when requested by tbe surety, which bis duty enjoins him to do, and tbe omission proves injurious to tbe surety, in all such cases tbe surety will be discharged. This principle is elementary, and is not controverted by counsel on either side. But tbe whole contest grows out of tbe application of that general principle to tbe facts disclosed in tbe answer and proven on.tbe trial. Tbe answer states, in substance, that tbe respondent signed tbe note as surety for tbe maker, Brown; that Brown died leaving a large amount of property; that bis widow administered upon tbe estate; that after tbe note became due, tbe respondent saw tbe appellant, and urged him to press tbe payment of tbe note, and if it was not paid, to sue him, as be wished, if be bad tbe note to pay, to take steps to have tbe estate so administered as to be most to bis benefit and that of tbe other creditors; that this request was frequently made; that tbe note was placed in tbe bands of an attorney for collection ; that before tbe suit was actually commenced, tbe appellant entered into an agreement with tbe administratrix, without bis knowledge, by which be agreed not to sue tbe
Conceding all these allegations to be strictly true, what defense do they offer to this suit ? It is very manifest that the respondent might at any time have become a creditor of the estate of Brown by paying the note. It was not necessary that he should be sued on the note, in order to render him a creditor. He would have been in no better position, and no more able to control the settlement of the estate, after judgment against him than before. Besides, the agreement was, as we understand the answer, not to sue him, the respondent. How he could have been injured by such an arrangement we fail to perceive. But if this is not the right construction to be placed upon the allegations of the answer, then clearly the appellant, by the agreement, did not disable himself from sueing when he would otherwise have been entitled to sue. For by the statute in force, no suit could be instituted against the estate of Brown within a year (chapter 70, sections 31 and 60, E. S. 1849), unless the claim had been presented to commissioners, or the probate court, and had been disallowed. So that the agreement not to bring suit against the administratrix for the time mentioned — if that was really the agreement — was granting no more indulgence than the law gave her. How then can it be said that the appellant varied the contract, or suspended any right which he otherwise might have enforced, by the new agreement ? The statute suspended the action, and he only agreed to do that which he was obliged by law to do.
We therefore think tbe instruction of tbe court, to tbe effect that if tbe jury found either or both tbe agreements to delay suit or demand of payment of tbe note, for a consideration, were made as stated in tbe answer, tbe surety was thereby discharged, was erroneous, and calculated to prejudice tbe appellant.
Judgment reversed, and a new trial ordered.