3 Ark. 216 | Ark. | 1841
delivered the opinion of the court:
The plaintiff in error contends that the defendant had, by his own acts, released him. The principle is clearly established: That a debt may be paid or extinguished by a third person becoming responsible to the creditor with the concurrence of the debtor. If the creditor grants further indulgence without the knowledge and consent of the debtor, he does it at his peril. Because, as between himself and the debtor, the giving indulgence, without notice, operates as an agreement, on his part, to look to the third person, and discharge the debtor. Chitty on Contracts, 581; Tatlock vs. Harris, 3 T. R. 180; Buller, Justice, puts this case, “Suppose A. owes B. £100, and B. owes C. £100, and the three meet, and it is agreed between them, that A. shall pay C. the £100, B’s debt is extinguished, and C. may recover the sum against A.” The same doctrine is laid down in Wilson vs. Coupland, 5 B. & A. 228.
In applying these principles to the case before us, it is necessary to ascertain if there had been such an indebtedness between them, and concurrence of the parties, as to amount to an extinguishment of the debt as between the original parties. Sadler and Logan were indebted to Williamson, in the sum of one hundred and fifty dollars, and assigned him a note, or bond, due by Paxton, for that amount. A month elapsed before he demanded payment, and he then gave an extension of time to the first of January, 1839, when he received an order from Paxton, on his debtor Bonds, for the amount. This order was not presented by him until February following, and then, he again extends the time of payment to the next Tuesday following, when, Bonds being ready to pay and fulfil his contract, Williamson failed to appear. Here was a mutual indebtedness of the various parties, and a substitution of Bonds in place of Paxton, by the act of Williamson, with the assent of all parties whose concurrence was necessary. The liability of Sadler and Logan was, then, clearly extinguished: they had ceased to have any control. Williamson, in receiving the order from Paxton on Bonds, and granting him time for payment, acted at his peril, and was guilty of such laches as released the plaintiffs in error, and the court below ought so to have instructed the jury. The judgment is reversed.