254 Mass. 356 | Mass. | 1926
This action was brought in the Municipal Court of the City of Boston on a poor debtor recognizance
The defendant Sandler testified that he knew nothing of this agreement until some time after the present action was brought, and there was no evidence to contradict that testimony. Collins made two payments amounting to $20 on account of said execution, and no more. The judge who heard the case refused to rule, as requested by the plaintiff, that the defendant Sandler became liable as surety on the default of Collins, and that upon all the evidence the plaintiff was entitled to a finding in its favor. He made a finding that the creditor abandoned the recognizance, and found for both defendants. On report to the Appellate Division this decision was reversed as to Collins and the report dismissed as to Sandler. Upon the plaintiff’s appeal the question we have to decide is, whether the plaintiff, by reason of the agreement for default and postponement of payment, released Sandler from his obligation as surety.
Upon the facts in this case the agreement was more than an extension of time. The default entered by reason of the contract with the creditor, without the surety’s consent, deprived him of the right to exonerate himself from further liability by surrendering the principal (G. L. c. 224, § 51), or in one or more of the ways in which that may occur when proceedings take their regular course. Merrill v. Roulstone, supra. Morgan v. Curley, 142 Mass. 107, 109. Under these circumstances the attempt to reserve the plaintiff’s rights against the surety was of no avail.
Order of Appellate Division affirmed.