76 Ala. 135 | Ala. | 1884
— We have examined the evidence in this canse with great care, and we fail to find any thing which tends, in the least, to show that Mr. Priester received more than one appointment as freight agent of the appellant corporation. Giving toPriester’s testimony the extremest interpretation, the appointment was experimental, with a reserved right to revoke, of which notice was given at the time. The experiment proved satisfactory, and there was no revocation and no reappointment. The bond, therefore, stands as a guaranty that he will faithfully discharge the duties of the office, or trust committed to him, “during the time he holds the said appointment, and until he is relieved therefrom.” We will not gainsay the position contended for, that the appointment might have been for a specified time, or term. The charter, or bylaws of the corporation, might have required that, or the appointing power might have elected to fix a term to its duration ; or a second appointment might have been made, which would necessarily have terminated the first. Nor will we deny that such fact, or facts, if they existed, might be shown by oral proof. In either of the categories supposed, the sureties on a first bond would not be liable for a default under a second appointment. — Rapier v. Louisiana Eq. Life Ins. Co., 57 Ala. 100; Kitson v. Julian, 4 Ellis & Bl. 854; Hassell v. Long, 2 M. & S. 363; N. W. Railway Co. v. Whinray, 10 Exch. 77; Holland v. Church-warden, 9 Welsby, H. & G. 430; Brewer v. King, 63 Ala. 511; So. Car. Soc. v. Johnson, 10 Amer. Dec. 644; Com. v. Fairfax, 4 Hen. & Munf. 208.
The Circuit Court should have ruled, that there was no evidence before the jury tending to show that the liability of Priester and his sureties on their bond ceased before his appointment was revoked, October 11th, 1879.
In Sweeney v. Bixler, 69 Ala. 539, the question arose, whether Bixler, who had received a mortgage from one Smith, was a purchaser, in that sense which would override a latent equity asserted by Sweeney. Bixler’s claim was past-due, and Smith gave him his note for it, due at one day, which we held to be no extension of the time of payment. On the same day, Smith executed a mortgage to Bixler, conveying to him the property in controversy, as security for the payment of the note. Bixler was bound by the mortgage not to enforce it, if the Smith note was paid by a named day, some four months afterwards. Bixler, at this time, had no knowledge of Sweeney’s equity. If the postponed day of foreclosure provided for in the mortgage had the effect of postponing the maturity and collectibility of the debt, then there was a new, contemporaneous consideration, which would constitute Bixler a purchaser as against Sweeney. We said : “ The extension of
In Brandt on Suretyship, § 320, it is said: “It has been repeatedly held, that the mere fact that the creditor takes from the principal a mortgage, or trust-deed of property, as collateral security for the debt for which the surety is liable, which matures after the maturity of such debt, does not, of itself, in the absence of an agreement to that effect, extend the time, or discharge the surety.” In support of this view the authorities are overwhelming.- — U. S. v. Hodge, 6 How. 379; Pendexter v. Vernon, 9 Humph. 84; Burke v. Cruger, 8 Texas, 66; Bank of Penn. v. Potius, 10 Watts, 148; Morgan v. Martien, 32 Mo. 438; Twopenny v. Young, 3 Barn. & Cress. 208; Thurston v. James, 6 R. I. 103; Scanland v. Settle, Meigs, 169.
There is a single Tennessee decision- — Lea v. Dozier, 10 Humph. 447 — -which holds the contrary doctrine. That court did not, however, note the fact, that it was overruling Pendexter v. Vernon, in the volume immediately preceding.
The authorities are uniform, that any extension of the debt of the principal — any disabling of the creditor’s right to sue, no matter for how short a time — granted on a valuable consideration, and without the assent of the surety, discharges the latter. — Inge v. Branch Bank of Mobile, 8 Por. 108; Carpenter v. Devon, 6 Ala. 718; Haden v. Brown, 18 Ala. 641; Cox v. M. & G. R. R. Co., 37 Ala. 320; Mobile Life Ins. Co. v. Randall, 71 Ala. 220; Boultbie v. Stubbs, 18 Ves. 20 ; Ducker v. Rapp, 67 N. Y. 464; Chase v. Brooks, 5 Cushing, 43; Carkin v. Savory, 14 Gray, 528 ; Veazie v. Carr, 5 Allen, 14; Smarr v. Schnitter, 38 Mo. 478; Headlee v. Jones, 43 Mo. 235. This case does not fall within the principle, as there was no agreement binding the creditor not to institute suit for the recovery of Priester’s indebtedness.
It was the duty of the Circuit Court to construe Priester’s conveyance of the personal property, and his mortgage of the homestead ; and he should have toid the jury, that neither of them tended, in the least, to absolve the sureties from liability on the bond, further than they diminished the default.
We need not apply these principles to the various rulings excepted to. We have detected no error in the rulings on testimony.
Reversed and remanded.
