93 Va. 510 | Va. | 1896
delivered the opinion of the court.
Before the note endorsed by Baker became due, according' to its tenor and effect, the State Savings Bank sold the Building and Loan Association stock, deposited by Penn as collateral, and the proceeds, $242.43, were credited on the note endorsed by Baker, as he claims, before he endorsed thereon
Afterwards, at the March term, 1893, of the Hustings Court of Roanoke, the State Savings Bank proceeded by motion, upon notice under the statute, against Penn and others as drawers, and Baker as endorser on the note, which will be spoken of hereafter as note number one; and, at the March term, 1893, a judgment by default was entered against the drawers, but the cause was continued as to Baker to the June term, 1893, when a trial was had upon the issue joined. After the evidence was all in, the court instructed the jury as follows:
“ 1st. The court instructs the jury that if they believe from the evidence that the note payable to W. F. Baker, and endorsed by him, signed by Hannabus Dunger, Henry, and Penn, and the note payable to State Savings Bank and signed by said Penn were both delivered to State Savings Bank at the same time, and were given to secure the same debt, then they must be taken together, all as parts of the same transaction; and if they further believe from the evidence that after the debt secured by said note became due, an extension of time was given, for valuable consideration, by said bank to said Penn, without the consent of said W. F. Baker, then said Baker is released from all liability on said note, and they must find for the defendant.”
“ 2d. If the jury believe from the evidence that W. F. Baker is liable at all on said note (under instruction number one), then they can only find a verdict for the amount remaining unpaid on said note after deducting the amounts paid by Thomas G. Penn on the indebtedness secured by said note.”
The verdict of the jury was for the defendant, and the plaintiff moved the court to set the verdict aside and grant it a new trial, on the ground that the verdict was contrary to the law and the evidence, which motion was overruled, and to this ruling the plaintiff took its first bill of exceptions.
The first assignment of error in the petition for the writ of error awarded by one of the judges of this court is as follows: “ The instructions complained of, and especially that set forth in bill of exceptions number two, are based on the opinion of the court (clearly expressed in the instruction, and yet more clearly and fully stated in the oral charge to the jury explanatory of the instruction), that the holder of accommodation paper cannot use, as collateral security, paper on which he is the maker, or one of several makers.”
This assignment, and the able argument of counsel in support of it, is founded upon a misconception of the question involved. It was not whether the maker of accommodation paper could use it as collateral security, but whether in the transaction between Penn (the maker of the notes numbers one and two) and the State Savings Bank, the notes were both delivered to the bank at the same time, given to secure the same debt, and each as a part of the same transaction, and whether or not the bank had extended credit to the principal, Penn, without the consent of the endorser, Baker, whereby Baker was released from liability on the note number one.
In the case of Dey v. Martin, 78 Va. 1, it was said by Lewis, P.: “There is no doubt that, by the indulgence granted the maker of the note, the appellee as endorser thereon was discharged. An endorser of a note is a surety for the maker; and the doctrine is well established that any change in the contract, however immaterial, and even although it be for his advantage, discharges the surety, if made without his consent.”
When the obligation of the surety is for the debt of the principal, if the time of payment is, without the consent of the surety, by a binding agreement between the creditor and principal, extended for a definite time, the surety is discharged. The reason is, that the surety is bound only by the terms of his written contract, and if those are varied without his consent it is no longer his contract, and he is not hound by it. Brandt on Suretyship, section 296; Alcock v. Hill, 4 Leigh 622; Dey v. Martin, supra; Christian & Gunn v. Keen, 80 Va. 369; Burson v. Andes, 83 Va. 445; Miller v. Stewart, 9 Wheat. 680; Smith v. United States, 2 Wall. 219.
When we come to examine the evidence, it will be seen that it is conclusively shown that notes numbers one and two were delivered to the bank at the same time, to secure the same debt, and as parts of the same transaction, and that an extension of time had been granted by the bank to Penn, the maker of note number one, as well as number two. These facts fully justified the instruction complained of, and we are therefore of opinion that it was proper to be given.
We are also of opinion that instruction number three was clearly applicable to the case, because there certainly can be no doubt that, if Baker was not relieved by the extension of time given without his consent, he was entitled to have every payment made upon the debt which his note was given to secure, credited on the judgment, if any, to be given against him.
The testimony of Baker is to the effect that he endorsed note number one for accommodation; that he never intended
The testimony of Barnes, the only witness examined for the plaintiff, and which is not at all definite, does not con
We are of opinion that there is no error in any of the rulings of the court below,» and its judgment is therefore affirmed.
Irmed.