34 Md. 512 | Md. | 1871
delivered the opinion of the Court.
Two questions are presented in this case, one on the admissibility of evidence, and the other on the prayer of the appellant refused by the Circuit Court. We will consider the prayer first.
The appellant assigned to the appellees the bond of Alexander A. Laws and Daker G. Jester, due February 7th, 1857, by an assignment in writing under seal, containing a guaranty for the payment thereof, and on this guaranty the suit was brought.
Laws, one of the obligors in the assigned bond, had two bonds of Theodore L. Davis, one of which was due in December, 1857, and the other in September, 1858, on both of which, judgments had been rendered, under the laws of Delaware, it is presumed, by a Delaware Court at May Term, 1856, and in November, 1856, both of said judgments were entered “transferred to Wells & Babbitt” on the docket of that Court.
Evidence was offered by the appellant, tending to prove that the appellees had received the bonds of Davis in payment of the bond of Laws & Jester; and by-the appellees, that the appellant had waived any right arising from neglect on their part to institute suit on the bond of Laws & Jester, or on those of Davis, and that the bonds of Davis were assigned to them as collateral security for the payment of the bond of Laws & Jester. On these points there was conflicting proof.
The appellees also offered evidence to prove that Laws & Jester were insolvent at the time of the maturity of their bond in February, 1857, and that Davis was insolvent at the maturity of each of his bonds. The appellant offered no evi
The first prayer of the appellant wras, that if the jury believed from the evidence that the appellant assigned to the appellees the bond of Laws & Jester, and that subsequent to the assignment, and before the maturity of the bond, the appellees received from Laws the bonds of Davis in payment and discharge of the debt due on the assigned bond, their verdict must be for the appellant, which was assented to by the appellees. Thereupon the appellant offered the prayer now under consideration: That if the jury believe from the evidence that the appellant assigned to the appellees the bond of Laws & Jester, and guaranteed the payment thereof, and that subsequent to said assignment the appellees received from Laws the bonds of Davis as collateral security, and extended the time of payment of the assigned bond by Laws & Jester, without the knowledge and consent of the appellant, their verdict must be for the appellant. This prayer was defective on several grounds. Even if there had been proof of a valid contract for extension of the time of payment of the bond of Laws & Jester, on which the appellant was guarantor, yet if that agreement had been entered into after the day of the maturity of the bond, it would be inoperative to discharge the guarantor or security. To give to such an agreement that effect, it must be made before the maturity of the bond. Rees vs. Berrington, 2 Vesey, Jr., 540; United States vs. Howell, 4 Wash. C. C. Rep., 620.
The proposition contained in the prayer being that an extension of time of payment given by the holder to the principal obligor at any time after the assignment to the holder, operates to discharge the surety, or guarantor, without regard to whether the extension were given prior or subse-r queiit to the maturity of the bond, it is, in this respect, defective.
An agreement, which will operate to discharge a surety in a bond, or a guarantor of payment of a bond, must be an
The agreement for extension must not only be valid and binding in law, but the time of the extension must be definitely and precisely fixed. Miller vs. Stem, 2 Penn. St. Pep., 286, and cases collected in note f above referred to.
Whether, to have the effect of discharging the surety in a bond, or a guarantor under seal, an agreement for extension of time of payment, in all other respects valid, may. be by parol, or whether it must be under seal, we are not to be understood to decide. There are conflicting authorities on the point, and we are not called on to decide it in this case. That a parol contract is not sufficient is held in Tate vs. Wymond, 7 Blackf., 240, where the case of Davey vs. Prendergrass, 5 Barn. & Ald., 187, is relied on, whilst the contrary is held in United States vs. Howell, 4 Wash. C. C. R., where Mr. Justice Washington reviews the case in 5 Barn. & Aid., and supposes that it was not meant to hold that position, but concludes that if it does, he dissents from it, for the reasons which he assigns.
There is, in this case, no evidence from which the jury could be at liberty to find such an actual agreement between the creditor and one of the principals, Laws, to extend the time of payment, upon sufficient consideration, and sufficient to prevent the creditor from bringing suit before the expiration of the extended time, even if a paro'1 agreement were conceded to be sufficient, as the law requires, and on that ground alone, it would have been error in the Court below to have granted the prayer. It would have misled the
That the bonds of Davis were not received by the appellees in payment of the bond of Laws & Jester, appears from the finding by the jury on the first prayer, admitted by the appellees.
There was no error in the refusal of the Court to grant the appellant’s second prayer.
The question which we will next consider is the exception to the evidence admitted by the Circuit Court.
"Whilst we are decidedly of opinion that the evidence of the witness’ opinion was improperly admitted, it remains to in
In Comstock, et al. vs. Pendergast, an unreported case, decided at April Term, 1869, the plaintiffs offered proof to sustain their claim, which was admitted, excepted to, and was error. They, however, proved by three witnesses the admissions by the defendant of the correctness of their claim. The proof of one of these witnesses was controverted by evidence offered by the defendant, but that of the other two was not contradicted. The defendant asked one of the plaintiffs’ witnesses, after his examination, to compare the vouchers with the claim of the plaintiffs, and re-called the witness to state
In this case, the witness, Nicholson, had proved the insolvency by competent evidence, before the illegal question was propounded to him. After his examination, the appellees further proved the same fact of insolvency by the competent evidence of Thomas McCraekin and of Laws, one of the insolvent parties, and the appellant offered no conflicting evidence. He offered no evidence tending to prove solvency, or to contradict or impeach either of the appellant’s witnesses! The fact having been proved by three competent witnesses, and not contradicted, to use the language of the Court in the case in 13 Mcl., “it must be supposed that the proof of these witnesses would be sufficient to convince the jury ” of the fact of insolvency, and that the verdict would not have been different, notwithstanding the admission of one piece of illegal evidence which tended to the same conclusion.
Since the argument, a prayer, which had been granted below, and omitted in making up the record, has been sent up, with an agreement that it be considered as if contained in the record. That prayer contained the law applicable to the case, but does not aid in respect to the inadmissible evidence in question. We. think, however, that, under all the circumstances of the case, substantial justice would not be promoted by a reversal of the judgment because of the admission of the evidence excepted to, and that the judgment ought to be affirmed.
Judgment affirmed.