123 Wis. 90 | Wis. | 1904
Many questions are presented for consideration on this appeal, tbe solution of ■which does not appear to be material to tbe final conclusion, and will, therefore, not be-discussed.
Assuming for tbe purposes of this case, but by no means-even suggesting that such is tbe law, that a bank having the-opportunity to protect a surety upon a note held by it, by asserting its right to offset against tbe same its indebtedness to tbe principal maker thereof upon his open deposit account
“It is a settled principle, that a surety is entitled to the1 benefit of all securities for the debt that are held by the creditor, and it follows from this right of subrogation that the: creditor cannot, without the surety’s assent, surrender, release, waste or render unavailable to the surety any of such’ securities, without affecting the creditor’s remedy against the-surety; but the surety is discharged on such ground only to-the extent to which the creditor has parted with such securities.”
Such cases as Paine v. Jones, 76 N. Y. 274; Gardner v. Van Norstrand, 13 Wis. 543, 544; Sage v. Strong, 40 Wis. 575; Stephens v. Elver, 101 Wis. 392, 77 N. W. 737; Cowdery v. Hahn, 105 Wis. 455, 81 N. W. 882, and similar au--thorities that might be cited, upon which counsel rely, and which seemingly, it is supposed by them, are in conflict with those we have cited, apply only, as the learned counsel for the-respondent contends, to cases where the contract itself, in respect to which the surety is bound, is changed to his prejudice, without his consent. That is not this case. An entirely different rule applies to one situation than to the other. There was a claim made here that the contract between the-principal maker of the note and the bank was changed to the-prejudice of the surety, without his consent, by the extension of the due date of the note. On that point, however, the appellant prevailed.
Counsel for the appellant insist that, conceding the law to-be as we state it, the court erred in deciding that only $259.68-
By the Gourt. — Judgment is affirmed.