168 S.E. 375 | W. Va. | 1933
The Marshall County Bank was a holder for value of a note which matured on October 1, 1931. C. D. Fonner was the principal maker of the note, and H. W. and D. V. Perkins were accommodation makers, which relationship was known to the bank. On October 8th, the bank accepted from Fonner two months' interest in advance, extending the maturity of the note to November 30th. This extention was without the knowledge or consent of the accommodation makers who now take the position that they were merely sureties and the extension released them from liability, as a matter of law. The circuit court entered a judgment against them on the note, and they secured a writ of error.
Bigelow on Bills, etc. (3d Ed.), sec. 207 (in aresume of sections 119 and 120 of the Negotiable Instruments Law) says: "The unwritten rule of discharge of surety parties to negotiable instruments by release or extension of time to the principal debtor, whatever his position on the instrument, remains *452 unaltered, with the single exception that the accommodationmaker or acceptor, having assumed on the paper the position of a principal (or co-principal) debtor, may be treated as such by the holder, in dealing with other parties to the instrument. Nor does the circumstance that the holder knew of the suretyship alter the result." Accord as to accommodation maker not being so discharged: Whitley on Bills, etc., 179; 5 U. L. Ann. (Neg. Inst.) 622; 8 C. J., subject Bills and Notes, sec. 431, p. 276; annotation 48 A.L.R. 716; Brannan, Neg. Inst. Law (5th Ed.), pp. 883 and 904; Eaton Gilbert, Comm. Paper, sec. 123, f, p. 551.
Counsel for the appellants make no effort to stem this current of authority, but contend that no matter what the law was under the uniform N. I. L., as contained in our Code 1923, (ch. 98A), Code 1931, 46-8-2 (d), restored the common law defenses of a surety, one of which is his release from liability by an extension of time to the principal debtor without the surety's consent. See Glenn v. Morgan,
Counsel place some reliance on the observation in the Revisers' note to Code, 46-8-1, that the substitution of certain words in section 1 left questions of suretyship "to be dealt with as at common law." We assume that the Revisers did not intend their observation to apply to the entire N. I. L., but merely to the effect section 1 had on sureties. Besides, the question here is one of primary liability and not of suretyship.
The judgment of the circuit court is therefore affirmed.
Affirmed.