5 Md. 102 | Md. | 1853
delivered the opinion of this court.
The record in this case shows, that the endorsement by the defendant of Pyfer’s notes to the plaintiff was based upon the security afforded by the mortgage, and therefore the mortgage may be regarded as the consideration of the agreement into which the surety entered when he consented to endorse the notes. The terms of the mortgage, therefore, must be strictly complied with by the plaintiff in order to bind the defendant as endorser. One of those terms is, there shall be no sale of the mortgaged property until default of the principal debtor to pay the uotes upon their maturity. We think this part of the contract between the several parties thereto has been departed from in the sale which has taken place, under the circumstances detailed in the evidence. This sale took place before the maturity and dishonor of the notes in question, and without the assent, and, for all we know, without the knowledge, of the endorsers. It is true the first of the original notes had fallen due and was dishonored, but it is equally true, by the assent of all parties, another note was substituted in the place of it, which thereby took from the plaintiff his right to seii under the mortgage for the non-payment of that note: — the effect of the substitution of the one note for the other was to place the new note in the same relation to the mortgage that the first one had borne. Before these notes became due, as we have already shown, the sale took place.
But it may be said, that although this might have been a departure from the strict letter of the contract between the parties, yet it cannot bo shown that the endorsers were preju
Believing that the sale of the property under the circumstances was a violation .of the terms of the contract with the endorsers, by which their rights might have been prejudiced, they are thereby discharged.
Judgment affirmed.