Turner v. Williams

73 Me. 466 | Me. | 1882

Libbey, J.

The defendant, Mary A. Williams, claims that she is surety in the note in suit, and she alone defends. The strongest case that can be claimed by her upon the evidence, is, that the plaintiff in consideration of a parol promise by Williams .and Dean, the principals, to pay eight per cent, interest, agreed with them to extend the time of payment of the note one year after it became due.

The question arises whether this agreement of extension xeleased the defendant from liability as surety on the note. We think it did not. The case of Berry v. Pullen, 69 Maine, 101, appears to be decisive of this case. In that case it is held that the agreement with the principal to extend the time of payment .must be one that will suspend the right of action on the contract, or which will authorize the principal to maintain an action against the creditor for its breach ; that a promise which is void because not in writing is not a good consideration for an agreement of extension, and that a parol promise to pay interest at the rate of eight per cent, per annum, not being valid, although not prohibited by law, (B. S., c. 45, § 1,) is not a good consideration for such an agreement.

It is clear that the plaintiff could not maintain an action against Williams and Dean for the interest at eight per cent, per annumbecause their promise to payitwas not in writing. Williams and Dean, not being legally bound by their promise, the plaintiff would not be liable on her agreement, which had no consideration upon which it was based, except their void promise.

But it is claimed by the learned counsel for the defendant that the parol agreement to pay interest at the rate of eight per cent, per annum, although not in writing, was a valid agreement to pay interest for the year at six per cent, and that such an agreement was a good consideration for the plaintiff’s agreement, and Bank v. Woodward, 5 N. H. 99; Wheat v. Kendall, 6 N. H. 504, and Bailey v. Adams, 10 N. H. 162, are cited as authorities sustaining this proposition.

. We think the answer is that the plaintiff never made an agreement to extend the time of payment of the note one year in consideration of the promise of Williams and Dean to pay interest for the year at the rate of six per cent. There ivas no such contract between the parties. True, as long as the note remains unpaid, the plaintiff is entitled to interest at the rate of six per cent, but it is by virtue of the statue and not of the promise of Williams and Dean.

The doctrine of the New Hampshire cases cited for the defendant has not been adopted or approved by this court. Berry v. Pullen, supra.

Judgment for the plaintiff for the amount dme on the note in suit.

Appleton, C. J., Walton, Barrows, Danforth andPETERS, <JJ., concurred.