139 Ky. 491 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
Appellee brought this suit upon a note for one thousand dollars, dated June 1, 1904, due twelve mo'nths after date, and signed by Edward M. and Emma 0 Hansen and appellant.
In his answer, appellant sought to defeat a recovery against him upon the ground that the note sued on was a renewal of a -note for one thousand dollars executed in 1894 by Edward M. and Emma O. Hansen to appellee with appellant as surety. That when he signed the note sued on, he had been released as surety on the original note by the seven years statute of limitation, but was ignorant of this fact when the renewal note was presented to and signed by him, that there was no consideration upon his part for the execution of the new note, and he signed it under the belief that he was then bound as surety upon the original note, and would not have signed it had he known that .ho was relieved from liability on the first note.
At the time appellant signed the note sued on, he had been released from liability upon the original note by the statute of limitation found in section 2551 of the Kentucky Statutes, providing that “a surety in any obligation or contract * * * shall be discharged from all liability thereon when seven years shall have elapsed' without suit thereon after the cause of action accrued.” And if he had been sued on this note, he could have relied on the statute and thereby defeated a recovery. After a surety has been released from liability on an obligation, a promise by him to pay the demand from which he has been discharged will not be obligatory unless it is based upon a new and sufficient consideration. So that, the real question to be determined is, does the note sued on rest upon such a consideration as will bind the surety? The payees in the original note at the time the renewal was executed could at once have brought suit against the payors, but by accepting the new note their right of action was suspended for one year, and within that period they could not bring suit against the makers. In other words, they granted to the persons bound upon the original note an extension of time in consideration of the execution of a new note. This extension of time was a sufficient- consideration to support the obligation of appellant as surety in the new note. Although appellant as surety in the original note was released, yet the principals therein remained bound, and the fact that by the execution of
Wherefore, the judgment of the lower court is affirmed.