Shaffer v. Clark

1. The Act of 1869 having made parties to an action competent witnesses for all purposes, the evidence of a defendant in his own behalf, although unsupported and positively contradicted by the plaintiff, must be submitted to the jury. Prowattain v. Tindall, 30 P. P. Smith 295, followed. 2. The payment of usurious interest, after a debt becomes due, is not a valid consideration for an agreement to give time. Hartman v. Danner, 24 P. P. Smith 36, followed.

Error to the Court of Common Pleas of Wayne county: Of January Term 1.878, No. 146. Scire facias to revive a judgment wherein Thomas Clark was plaintiff and Thales K. Varney and Joseph Shaffer defendants. The pleas were nul tiel-record, payment with leave, &c. The plea of nul tiel record was withdrawn and Shaffer filed a special plea averring, that he was surety for the defendant Varney on the note on which judgment was entered; that after the note became due he gave notice to plaintiff to collect the same of Varney, or he would no longer be bound as surety, and that plaintiff wholly neglected to collect said note from Varney, although such collection could then have been made: that plaintiff, for a valuable consideration, extended' the time of payment from 4th September 1872, to 4th September 1876, at the instance of Varney, and without the knowledge or consent of Shaffer; and that plaintiff had released lands of Varney from the lien of said judgment, without the knowledge or consent of Shaffer. The replication was a general denial of the matters alleged by the defendant. At the trial it appeared that on September 4th 1871, Clark loaned Varney $1000, for which the latter gave his judgment note payable one year from date with lawful interest. At the request of Varney, Shaffer signed the note as surety. Judgment was subsequently entered on the note to December Term 1871. At the time of the execution of the note, Varney paid Clark a bonus of $40. It appeared that the note was extended from year to year, and at each extension Varney paid Clark $100 ; one year’s interest at 10 per cent. On September 4th 1876, this action was brought to revive the judgment. On April 5th 1875, Clark also released a house and lot which Varney had sold to one Bloes for $350, from the lien of the judgment. Shaffer testified that he met Clark after the original note had become due and had notified him to collect it; that Varney had property and that if plaintiff did not collect it, defendant would not be responsible; that after that defendant did not know whether the note -was paid or not; that he supposed it was paid; that he never heard of any further time having been given by Clark, and that he first learned that the note had not been paid ~ by the service of the writ upon him in this case. The defendant was not corroborated in any of these statements and was contradicted in every particular by the plaintiff, who declared he scarcely knew the defendant and had never spoken a half dozen words to him ; that no conversation as that alleged occurred. The defendant submitted the following points, to which are appended the answers of the court, Waller, P. J.: 1st. If Shaffer was a surety for Varney, and after the debt became due, gave notice to plaintiff to collect it, and he failed to do so, he (Shaffer) would no longer be bound as surety; Shaffer would be discharged in law if plaintiff neglected to collect the debt; and the burden of proof is on the plaintiff to show that it could not by due diligence have been collected from Varney after such notice was given. Ans. “In answering this point we first inclined to affirm it, leaving to you the question of the weight of evidence as to the notice; but on more deliberation, in view of the fact that our courts of law are leaning largely to doing equity, and considering that we have the naked, unsupported oath of the defendant, upon whom devolves the onus of sustaining his plea, as positively contradicted by the oath of the plaintiff, thus leaving the jury to guess which of the parties in interest may have told the truth, we have concluded to instruct you, and do so instruct you, that there is no sufficient evidence upon which to submit to you the question of notice. We therefore negative this point.” Sd. If Shaffer was a surety for Varney, and plaintiff, for any legal consideration, extended the time of payment beyond the period designated in the note on which judgment was entered, without Shaffer’s consent, Shaffer is in law discharged. Ans. “ This point is sound as a legal proposition, but, in its application here, we must instruct you that the first payment upon the judgment by Varney was six days after the maturity of the note, and was not a legal consideration for the extension of the time of payment. The payment of interest or part of the principal, or payment of a bonus, after the debt has become due, is not a valid consideration in law for an agreement to extend payment. We must therefore negative this point.” In the general charge, the court, inter alia, said: “And now you will take this case and ascertain, .under the instruction we have given you, what amount, if any, remains due to plaintiff' upon the judgment. You will see what amount has been paid, applying any excess over interest to the principal, year by year, to April 5th 1875, when you will deduct the value of the Rloes house and lot released, and ascertain the balance. All payments made after the 4th September 1872, were to be applied upon a debt due, and there was no time when the plaintiff could not after that have issued execution, or at which this defendant Shaffer could not have paid plaintiff, taken' assignment of the judgment,, and enforced collection.” The verdict was for plaintiff for $483.12. The defendant, after judgment thereon, took this writ, and assigned for error, inter alia, the answers to the foregoing points, and the portion of the charge noted.