Haden v. Brown

18 Ala. 641 | Ala. | 1851

DARGAN, C. J.

It is contented that the plea, which was demurred to, is insufficient, inasmuch as it does not show how long, orto what particular time the payment of the bill was agreed to be postponed. But we think that this objection cannot be sustained. A security has the right to stand on the precise terms of his contract, and is discharged, if those terms are altered without his consent, whether the alteration consists in the amount of the obligation, or the time, or manner of performing it.' — McKay et al. v. Dodge et al., 5 Ala. 388; Bang et al v. Strong, 7 Hill, 250. Nor is it material whether such alteration is prejudicial to the security or not. The only question is, whether the contract has been changed without his consent, and if it be found that it has been, the security is discharged ; for never having assented to the new contract introduced by the change, he is not bound thereby. Testing the plea by this rule, we think it is substantially good. It avers that for a valuable consideration moving from the drawers of the bill to the plaintiffs’ testator, who was the holder, the day of payment was postponed. If so, the contract was changed, and the defendant discharged, unless he assented to the alteration. It may be true, that an agreement between the principal debtor and the creditor, which does not stipulate for any precise time, but leaves the legal right in the creditor to sue for, or demand the money due by the contract, at any moment, does not work a change of the contract as to the time of payment. But when the day of payment is postponed by an agreement founded on a sufficient consideration, then it cannot be said that the time of payment has not been altered.

2. The instructions given by the court to the jury cannot be sustained. It is manifest that a creditor may take collateral security to secure his debt, without altering the original contract, or affecting the liability of the security. Nor can the security claim to be discharged because the creditor will not, at his request, proceed to convert such collateral security into money, although the property should be depreciated in value in consequence of his neglect to sell. — Branch Bank at Montgomery v. Perdue, 3 Ala. 409, and cases there cited. But it is.urged that the evidence shows that the time of the bill was extended by the plaintiffs’ testator, without the consent of the defendant, and, therefore, the defendant is discharged; and on this ground the instructions of the court can be sustained. We are, however, clearly of the opinion that no question in regard to the extension of time is raised by the evidence, as it is now presented to us. If we were to admit that the first deed of trust, in connection with the, defendant’s written consent on the back thereof to the extension of time contemplated in consideration of the deed, was evidence tending to prove that the day of payment of the bill was agreed to be postponed thereby, still the defendant’s assent to such delay of the payment would prevent his discharge from liability, and he would still be bound as endorser; for he expressly agreed that he would be.And the second deed of trust, upon its face, does not show that it was the agreement between the parties .thereto, that further time was agreed to be given. It simply shows that the grantors intended to secure the payment of the bill and to retain the possession and control of the property until it should be sold, according to the provisions of the deed. But this deed, independent of all other evidence, does not, and cannot raise any question as to the extension of the day of payment of the bill. It may, however, be, that upon another trial, it will appear that the extension of the day of payment formed an ingredient in the consideration of the second deed, and if so, the question will arise whether the taking of the second deed, extending the time of the payment of the bill, will discharge the defendant; he having consented to such delay as was contemplated, in consideration of the first deed. But this question is not raised for our revision at this time, and, therefore, is not considered. The only question, as we conceive, that is raised by the instructions of the court, is this, whether the refusal of the plaintiffs’ testator to sell the property conveyed by the first deed, before taking the second, discharged the defendant from his liability, and we are clearly of the opinion that it did not; for a security cannot compel a creditor to take proceedings against property conveyed in trust to secure the debt, nor claim to be discharged because the creditor refuses to do it.

The judgment must be reversed and the cause remanded.