57 Mo. 100 | Mo. | 1874
delivered the opinion of the court.
This suit is upon three notes, one of which is as follows:
Kansas City, Mo., Feb. 28th, 1870.
“ Sixty days after date we promise to pay to the order of H. Helmrick,& Co.,four hundred and fifty dollars at the banking office of the German Savings Association, with ten per cent, interest per annum from maturity, until paid; value received. Signed
H. Helmrick & Co.
James M. Ward.
Marked: Extended July 1st', due Ap’l 29th,and May 2nd.
The defendant, Ward, sets up as a defense that he was surety, and that plaintiff gave time to the principal — by which the surety was released.
The three notes sued on were, it appears, given in lieu of other notes made by Helmrick & Co., on which Ward was indorser, and after the notes had fallen due and been protested and due notice had been given to Ward.
The new notes were drawn up by the cashier in a shape which he supposed would make Ward principal, and preclude him from setting up his suretyship. And when these notes fell due, an extension of time of sixty days was given to Helmrick without consultation with Ward, and this extension was made on payment by Helmrick of part of the principal and all the interest, and was for a definite period. As the law now stands, the plea was a good one, as the extension was for a definite period and made without the consent of the surety, and being reduced to writing on the back of the notes precluded the plaintiff from suing, until the expiration of the sixty days. It is useless to recite the instructions.
The judgment must be affirmed ;