| Ill. | Dec 15, 1851
In the view we take of this case it is unnecessary to notice more than a single point. The only ground upon which the appellees seek relief is, that they were securities for Corneau on a note dated in 1840, upon which judgment had been entered against both him and them in the Circuit Court of Sangamon county in 1842; that after the rendition of judgment Corneau without their knowledge or consent, made an arrangement with Gardner, the payee of the note and plaintiff in the judgment, whereby it was agreed, that if Corneau would pay the costs of said judgment and interest thereon at the rate of twelve per cent, per annum, as specified in the note, said plaintiff would issue no execution on said judgment, or would waive his right to issue such execution. The bill then alleges that Corneau did pay the costs, and the interest at twelve per cent, for some length of time, which agreement and suffering the judgment to remain dormant up to near the time of filing the bill in 1850, is alleged to be a fraud upon the securities of Corneau, whereby they are released from their responsibility as securities. The evidence in reference to this agreement is as indefinite as the bill. Corneau, the only witness upon the subject of the agreement, says : “ There was an agreement or contract entered into between said Gardner and myself, that if I would continue to pay the interest on said note and judgment at the rate of twelve per cent, per annum, he would have no execution issued on said judgment, and if I would pay the costs which had then accrued, I might consider the matter in the same light as though no judgment had been obtained; and .this contract or agreement was for an indefinite length of time.” This witness further stated that the agreement was made shortly after the rendition of judgment, and that he paid the costs and interest which had accrued, but did not pretend that any subsequent payment of interest was made. The agreement as set forth in the bill and proved by Corneau is entirely too indefinite to be enforced in a court of equity. It does not appear that Gardner waived his right to issue execution for any definite period; so far from it, Corneau expressly states that the contract was for an indefinite length of time. There was nothing in the agreement to prevent Gardner from suing out execution the next moment after Corneau paid up the interest. Gardner did no act which could have prejudiced the rights of the securities, because he did not put it out of his power to issue execution at any moment when required. There was no obligation on Corneau to pay the twelve per cent, for any particular length of time; but he was at liberty to cease paying it the moment after the agreement was made, as the record shows he actually did. An agreement to be binding must be mutual, and if Gardner could not compel Corneau to pay the twelve per cent, interest for any particular length of time, neither could Corneau compel Gardner to suspend execution for any definite period.
A promise to delay for an uncertain period will not discharge a surety, for the reason that the stay, being indefinite, can be arrested at any time the sureties request it to be done. The cases of Miller v. Stem, 2 Barr, 286, McGee v. Metcalf, 12 Smedes & Marshall, 535, and Alcock v. Hill, 4 Leigh, 622, are express to the point, that to discharge a surety by extension of the time of payment there must be not only a sufficient consideration, but the time must be definitely fixed.
Gardner’s promise to Corneau that the latter might consider the matter as if no judgment had ever been obtained, if he would pay the costs, was wholly without consideration, as Corneau was bound for the costs at all events. This part of the agreement amounted to nothing more than a mere indulgence, determinable at the will of the party by whom it was made. An agreement, without consideration, to enlarge the time of payment, will not discharge the surety. Reynolds v. Ward, 5 Wend. 501" date_filed="1830-10-15" court="N.Y. Sup. Ct." case_name="Reynolds v. Ward">5 Wend. 501; Bank of Utica v. Ives, 17 Wend. 501" date_filed="1837-10-15" court="N.Y. Sup. Ct." case_name="Bank of Utica v. Ives">17 Wend. 501; McLemore v. Powell, 12 Wheat. 554" date_filed="1827-02-20" court="SCOTUS" case_name="McLemore v. Powell">12 Wheat. 554; Creath v. Sims, 5 How. 192" date_filed="1847-02-16" court="SCOTUS" case_name="Creath's Administrator v. Sims">5 How. 192; Leavitt v. Savage, 16 Maine, 72; Waters v. Simpson, 2 Gilm. 570.
The decree of the Circuit Court is reversed and the bill dismissed. Decree reversed.