39 Iowa 290 | Iowa | 1874
The defendant, Eichardson, in his answer, admits the making of the note sued on, and alleges as a defense thereto that he was surety only on' the note, having received no part of the consideration, of which plaintiff had knowledge; that on or about the time the note became due,
II. The defendant, Richardson, asked the court to give the following instruction to the jury:
There was no error in the charge in these respects. The appellant had admitted the making of the note, and set up an affirmative defense thereto, which, of course, cast the burden of proof upon him.
The law is also well settled that if the surety relies upon an agreement to give time to the principal, it must be a valid one, one founded on a sufficient consideration, for it is only where the creditor, by his act or contract, has precluded himsélf from demanding performance of the principal, or entitles the latter to claim for any time an exemption from performance that the surety will be discharged, and the principal cannot claim such exemption under an agreement not based upon a valuable consideration. Hershler v. Reynolds, supra. Leading Oases in Equity, Yol. 2, Part 2, 383, 384. Hence a mere promise of forbearance on the part of the creditor will not operate as a discharge of the surety, if it want any of the characteristics necessary to make it effectual as a contract, and render it legally binding.
We find no error in the record and the judgment will be
Affirmed.