159 S.W. 874 | Tex. App. | 1913
The trial court found the following facts, in substance: That at the time of the several extensions interest was paid in advance to the time when the payment was extended; that Vickery had no notice of the payments of interest in advance, nor of the extensions of the time of payment; that the original note made by the parties had been renewed three times, and that the various extensions were of the last note; that Vickery did not know the last note had not been paid until November or December, 1909, and that he did not consent to any of the extensions of the time of payment; that the bank knew at all times that Vickery was merely a surety upon the note.
The first assignment of error is without merit. The original note sued upon having been attached to the petition as an exhibit, there can be no variance between the allegation and the proof such as would surprise the defendants when the note was offered in evidence. The real question in this case is whether or not the stipulation quoted above, to the effect that the time of payment might be extended without notice thereof, permitted repeated extensions of the time of payment without the knowledge and consent of appellant, Vickery. We have not been able to find any Texas case in which this question has been considered. In the case of Oyler et al. v. McMurray,
The case of Rochester Savings Bank v. Chick, cited above, was a suit upon a promissory note containing this provision: "All the signers agree to be holden should the time of payment be extended." And in the opinion we read: "Clark had no knowledge of any of the extensions, and did not consent to any of them, except by the agreement in the note. That agreement could not have been intended for an indefinite extension of the time of payment, nor for a series of extensions, from time to time, indefinitely, so that the creditors and principle makers could, at their pleasure, always keep the surety liable, and forever prevent his enforcing payment against the principal, or using the statute of limitations as a defense. Such a construction of the agreement in the note with such consequences cannot be adopted without clearly expressed intention to that effect in the agreement itself. The time of payment fixed upon in the note is six months, and the agreement `to be holden should the time of payment be extended' naturally, and by the ordinary force of language taken in connection with the first part of the note, means a reasonable extension for a definite time, and not a series of extensions indefinite in number and endless in repetition. When the plaintiff, at the end of six months from the date of the note, extended the time of payment for a definite period of time, the extension was in accordance with the agreement of all parties. All parties were bound by it, and the defendant Clark was not thereby discharged, but the agreement in the note was met and satisfied by such an extension. Any further extension, upon a valid consideration and binding upon the plaintiff, made without the consent of the surety, had the effect of discharging him." Hodge v. F. Bank,
The rule is well founded that sureties are specially favored both by courts of law and equity, and requires that a contract of suretyship must be strictly construed to impose upon the surety only those burdens clearly within its terms, and must not be extended by implication or presumption. State v. Evans,
In our opinion, the repeated extensions of the time of payment for a valuable consideration, made upon such terms as bind the bank, had the effect of releasing appellant, Vickery, and the judgment of the trial court as to him is reversed and here rendered, discharging him with his costs. The judgment in all other things is affirmed.