Scott v. Scruggs

95 Ala. 383 | Ala. | 1891

COLEMAN, J.

The authorities are uniform in holding, that any agreement supported by a valuable consideration, made by the creditor and principal debtor, without the assent of the surety, by which the debt of the principal is extended, operates a discharge of the surety. — Mobile & Montgomery R. R. Co. v. Brewer, 76 Ala. 142.

An agreement for the extension of a debt, founded upon a partial payment made after maturity, is not supported by a sufficient consideration to discharge a surety; but, if the partial payment be made before the maturity of the debt, it is sufficient to support an agreement for the extension of the debt, and if made without the assent of the surety he will be discharged. — Brandt Sur., § 306, and note. Payment of interest on a note in advance has been held to be a sufficient consideration to support an agreement for the extension of a debt.— Vestal v. Knight, 15 S. W. Bep. 16. In the case of Turner v. Williams, 12 S. W. Rep. 989, the law is stated as follows: “The acceptance of interest in advance of the maturity of a note is prima facie evidence of a binding contract to forbear and delay tlie time of payment, and no suit can be maintained during tbe period for wliicli tbe interest bas been paid, unless tbe right to sue be reserved by tbe agreement of tbe parties.” Tbe payment of tbe interest in advance is not, of itself, tbe contract'for delay, but is evidence of such contract, and in tbe absence of rebutting evidence is conclusive. See Brandt, Sur., § 305; also, Uniontown v. Mockey, 140 U. S. 220.

We are satisfied that, if plaintiff demanded tbe payment of interest for six months before it bad accrued, and it was paid in advance by tbe principal debtor, upon tbe agreement that tbe debt should be extended six months, or any other definite time, and was accepted upon such agreement, it would be a sufficient consideration to support tbe agreement for tbe extension of the time; and if this was done without tbe knowledge and assent of tbe surety, it would operate a discharge of tbe surety.' — Scott v. Mobile & Girard R. R. Co., 322.

Tbe evidence of Scott, tbe principal debtor, was competent to prove, and tended to prove, that tbe plaintiff knew that Freeman was only a surety. — Summerhill v. Tapp, 52 Ala. 227; Walton v. Williams, 44 Ala. 349; Br. Bank of Mobile, v. Coleman, 20 Ala. 140; 9 Ala. 949. He says, that plaintiff inquired of him “what security be could give” to procure tbe loan of tbe money. “I told him I could give my note, with Freeman as surely.” Tbe evidence of both the defendants tended to show that tbe notes sued upon were mere renewal notes, extending tbe time of payment. It was for tbe jury to determine tbe weight and credibility of tlieir testimony.

Tbe notes sued upon were dated January 4th, 1890, and due six months after date. There is evidence tending to show that in July, 1890, tbe plaintiff agreed to extend the time of tbe maturity of tbe notes to January 4th, 1891, upon tlie payment of the interest in advance for that period, and upon this agreement tbe interest was paid in advance. There is evidence tending to show this agreement was made without tbe assent of tbe surety.

Tbe court erred in giving tbe general charge in favor of tbe plaintff, and erred in refusing to give charge No. one requested by tbe surety. Some of tbe charges requested by tbe defendant, notably charge No. 2, failed to hypothesize’ tbe fact of knowledge of the suretyship on tbe part of tbe plaintiff, and were properly refused. We do not apprehend that there will be any further difficulty on another trial.

Reversed and remanded.