69 Mo. 539 | Mo. | 1879
This was a suit on a note for $2,000, executed by Blaine & Steers, and the defendant, John Aaron, dated February 18th, 1873, payable 180 days after its date to William Steers, and by him indorsed to the plaintiff. The note was given for money borrowed by Blaine & Steers of Stillwell; the defendant, Aaron, was but the surety of
It has uniformly been held in this State, that if a creditor, for a valuable consideration, make an agreement with the principal debtor which suspends his right of action on the demand for a definite period of time, without the
An agreement to extend the time will discharge the surety, whether, the agreement is , indorsed upon the obligation, or be evidenced by erasure or interlineation or by a collateral agreement. The adjudicated cases which support this proposition are innumerable, and nearly all, if not all, that will be subsequently cited in this opinion fully sustain it. Familiar principles of elementary law, we think, may also be safely invoked in its support. “ In case of a simple contract in writing, oral evidence is admissible to show that by a subsequent agreement the time of performance was enlarged, or the place of performance changed.” 1 G-reenleaf Ev., § 304. “Neither is the rule (that extrinsic evidence is not admissible to contradict or alter a written instrument) infringed by the admission of
That interest paid in advance is a sufficient consideration to support a contract for the extension of the time of payment of a note, or other money demand, is fully sustained by the following cases : Smarr v. Schnitter, 38 Mo. 479; Lime Rock Bank v. Mallett, 34 Me. 547; Bank v. Woodward, 5 N. H. 99; Wright v. Bartlett, 43 N. H. 548; Montague v. Mitchell, 28 Ill. 485; Kennedy v. Evans, 31 Ill. 258; Myers v. First National Bank, 78 Ill. 258; Cross v. Wood, 30 Ind. 378; White v. Whitney, 51 Ind. 124; Vilas v. Jones, 10 Paige 76; Miller v. McCan, 7 Paige 451; Kenningham v. Bedford, 1 B. Monroe 325; Austin v. Dorwin, 21 Vt. 38; 72 Ill. 301; 2 N. H. 333; 6 N. H. 504. In most of the above cases it was held that payment of usurious interest is a sufficient consideration for the promise to extend the time of payment. We are aware that the contrary was held in Wiley v. Hight, 39 Mo. 132, and in the Farmers’ & Traders’ Bank v. Harrison, 57 Mo. 506; but the case principally
It is contended, by the appellant’s counsel, that defendant, having executed the note as a maker, stands as a principal debtor after indorsement, and the indorser as a surety. This might be true if the paper were negotiated in the ordinary course of business. If Stillwell had purchased the note of the payee, even with knowledge that Aaron had executed it for accommodation, he, under the cases cited by counsel, would have had the right to treat him as a principal, and Steers, the indorser, as his surety, throughout. The cases cited fully sustain that view. But here there was a borrowing of money. It was pre-arranged by Stillwell and Blaine & Steers, who borrowed the money, that the latter should procure the name of some other person to the note as surety. It was in no sense the'case of a note negotiated in the ordinary course of business, or rather of a note bought by Stillwell of the payee. It was of such a note that it was said, in the Bank of Montgomery v. Walker, 9 Serg. & Rawle 238, that: “ "When the note was indorsed,
The German Savings Association v. Helmrick, 57 Mo. 101, was a case like the present. The note was executed by Helmrick & Co. and Jas. M. Ward, payable to Helmrick & Co., who assigned it to the German Savings Association. Ward executed the note for the accommodation of Helm-rick & Co., and the court decided that Ward was released in consequence of a binding agreement for extension of the
Aeeirmed.