39 Mo. 130 | Mo. | 1866
delivered the opinion of the court.
This was an action instituted by the holder of a negotiable promissory note against the endorser. The note was duly protested and the suit commenced before a justice of
There is only one question presented by the record. On behalf of the defendant below (appellant here) the maker of the note was introduced as a witness, and testified substantially that without the knowledge or consent of the endorser he made a verbal agreement with the holder for an extension of the time of .payment, upon the condition that he should pay interest on the same at the rate of fifteen per cent, per annum ; that in pursuance of that agreement he paid at different times money which was to be credited to him for the interest calculated at the said rate, and thereupon the holder promised to extend the time of payment to an indefinite period. The trial was before the court sitting as a jury, who declared the contract for the extension of time to be usurious and void, and found for the plaintiff.
The law of this case has been so well settled that there is no necessity for restating the reasons upon which it rests. There was no contract here of which the maker could have availed himself to prevent a recovery by the holder before the expiration of the time which he had agreed to wait. There was no period of time after the notice of protest that the endorser could not have paid the amount of the note and pursued his remedy against the maker. If the fact could be shown that the maker had really paid more than the amount of interest due upon the note by the terms of ' the contract, the excess would go to the extinguishment of so much of the principal, and, instead of being prejudicial to the endorser, would be directly for his benefit; therefore, the contract was not such as to discharge the endorser.
The other judges concurring, the judgment of the court below will be affirmed.
