Phillips v. Rounds

33 Me. 357 | Me. | 1851

Shepley, C. J.

— The defendants did not perform the condition of their bond; and the plaintiff will be entitled to judgment, unless he has by a valid agreement to extend the time of performance discharged the surety.

The attorney of the plaintiff by a written contract, not under seal, requested that the principal should delay performance for a stipulated time. The contract was declared to be made “ in consideration of delay granted at the instance and request of the creditor.”

It was stated in the case of Leavitt v. Savage, 16 Maine, 72, that a parol agreement of this description would discharge a surety. The consideration’of delay named in this contract is a sufficient one ; the case having been continued, so that the defendant could not perform until the subsequent day.

An attorney retained to manage a cause before any tribunal, has authority to apply for a continuance or postponement of the trial or hearing; and he may make an agreement to effect that object, which will be binding upon his client. This power was recognized in the cases of Moore v. Bond, 18 Maine, 142; Washburn v. Mosely, 22 Maine, 160, and Fales v. Goodhue, 25 Maine, 423.

The counsel for the plaintiff contend, that proof, that time was given to the principal without consent of the surety, cannot be received under the general issue and the brief statement filed in this case ; and refer to the case of Washburn v. Mosely, as so deciding.

The parties in this case have agreed upon a statement of facts, and that the Court shall decide the. case upon the facts agreed, and not upon such part of them as are legally admissible under the pleadings. The Court cannot therefore exclude from its consideration any of the agreed facts, or refuse to apply the law to thern.

In the case of Fales v. Goodhue, it does appear that an adjournment for the debtor to make his disclosure, was ordered on motion of the plaintiff’s attorney, to a time beyond tire day of performance. This was the only agreement. The fact appears to have been used only as proof, that the plaintiff could not be permitted to object, that performance on the day, to which the proceedings were adjourned, would be good.

No question appears to have been presented or decided respecting its effect upon the surety.

Plaintiff nonsuit.