24 N.M. 221 | N.M. | 1918
OPINION OP THE COURT.
Appellant sued appellee in the district court of Luna county on a judgment claimed to haVe been rendered in its favor by the district court of El Paso county, Tex. That judgment was rendered in a suit instituted on a promissory note executed to appellant by Tri State Amusement Company, the payment of which was guaranteed in writing by appellee, Bernard Schuster and A. E. Schuster. Appellee filed an answer to the complaint in the district court of Luna county, setting up that he had not been served with process in the Texas suit and had not appeared in such action; that the attorneys who entered their appearance in such suit did so without authority from appel-lee, and without his knowledge or consent. Appellant, upon the filing of such answer, filed an amended complaint suing in the alternative upon the promissory note, the payment of which had been guaranteed by appellee, as stated. Appellee filed answer, setting up as a defense to the count of the complaint, suing upon the note, that the guaranty had been executed by ap-pellee without consideration. As a second defense he pleaded that he had been induced to guarantee the payment of the note by false and fraudulent representations made to him by the agents of appellant. Appellant replied, denying the allegations of the answer. The ■cause was tried to a jury, and, after defendant had introduced practically all of his evidence, his attorneys asked leave of court to file a trial amendment, setting up the fact: That the contract was executed in Texas and was to be performed there. That under the law of Texas it is provided (article 6329) that:
“Any person bound as surety upon any contract for the payment of money or the performance of any act, whip, the right of action has accrued, may*' require, by notice in writing, the creditor, or obligee forthwith to institute suit upon such contract.”
That it is further provided by article 6337, which is old or former number 3819, that:
“The remedy provided' for sureties by this title extends to indorsers, guarantors, drawers of bill's which have been accepted, and every other suretyship, whether created by express contract, or by operation of law.”
That under the law of Texas any valid extension. without notice to and consent of such guarantor or surety releases such guarantor or surety. That the time of payment of the note in suit had been extended by a contract made, from time to time, by and between appellant and Arthur E. Schuster, one of the guarantors, all without notice to or the consent of ap-pellee. The trial amendment contained other1 allegations not material here. The appellant objected to the filing of the trial amendment, but his objections- were overruled, whereupon he filed a reply to the same. Thereupon the trial proceeded, and the jury, after instruction, returned a general verdict for the appellee upon both counts of the complaint. Judgment was entered upon the verdict, from which this appeal is prosecuted.
“Q. On making' those payments (interest) what arrangement did you have -with Mr. Gaines in reference to'them? A. No arrangement at all. * * *• Q. Was the time of. payment extended at those times? Q. Well, tell what was done when you paid up to October 20, 1913; what was the understanding then? A. When I paid the interest there, Mr. Gaines said: ‘We will carry this along as long as possible, hut you have got to keep the interest paid anyway. * * * Qa * * * Why did they not sue on the note? A. Because I asked them not to, to let it ride along. ,Q. * * * Was there any understanding with Mr. Gaines that he would not sue on the note as long as you kept the interest paid, or whether he could carry it? A. He told me to keep the interest paid on it, and’ they would carry th^-matter along indefinitely.”
Gaines testified positively that there had Ijeen no extension of the time of the payment of the note mentioned; that the interest had been paid from time to time on tbe note by Scbuster as it became due; that no demand had ever been made upon any of the parties for the payment of the principal. The guaranty sued upon in the present case was an unconditional one, and the law in Texas, as in most of the other jurisdictions, is, where there is an unconditional guaranty or undertaking, that the indulgence of the principal in extending the time of payment, not predicated upon an agreement, will not operate as a discharge of the guarantor in such an undertaking as the one sued on. Tobin Canning Co. v. Fraser, 81 Tex. 407, 17 S. W. 25. The mere giving of time to a creditor without the knowledge and consent of the guarantor, without a binding, valid agreement to that effect for a definite time and for a consideration, will not discharge the surety. Payne v. Powell, 14 Tex. 600; Hunter v. Clark, 28 Tex. 159; Claiborne v. Birge, 42 Tex. 98; Andrews v. Hagadon, 54 Tex. 571; Houston v. Braden (Tex. Civ. App.) 37 S. W. 467. Here there was no evidence of a valid agreement extending the time of payment of the note. All that Schuster did was to pay the past-due interest on the note from time to time, upon the payment of which appellant agreed that the note might run on indefinitely, so long as the interest was paid.