Findley v. Hill

By the Court, Prim, J.:

The defense set up in the separate answer of the appellant is, that he signed the note upon Avhich the action is based, as surety only of the defendant Hill, and that the respondent had full knowledge of that fact at the time said note was executed, although the word ‘ ‘ surety” Avas not appended to his signature. That the respondent, Avithout the assent of the appellant and against his protest, entered into an agreement Avith the defendant Hill, by the terms of Avkicli the said Hill should have an extension of time for the payment of the note until after the haiwest of 1879, in consideration that said Hill should then pay the amount due upon the note in wheat, when the same should be harvested. If this Avas a valid agreement it is quite clear that it operated as a discharge of the appellant, for it is well settled that Avhere time is given to the principal debtor Avithout the assent of the surety, by a valid agreement which ties up the hands of the creditor, the surety is discharged. (Bangs v. Strong, 7 Hill, 250 .)

But in this case we think the agreement for the extension of time was invalid, for the reason that the time to which the payment Avas extended was indefinite and uncertain, and for the lack of any consideration to support it. In Miller v. Sterne, 2 Penn. St. 286, it was held that “to discharge a surety by extension of the time of payment, there must be not only a sufficient consideration, but the time must be definite; hence an agreement to delay for an uncertain period, as until some time in the summer, will not discharge him.” (Chitty on Bills, 412, 414; 3 Penn. St. 440.) The agreement to pay in wheat after harvest was equivalent to *250 saying that if the creditor would wait until after harvest he would pay the amount due on the note; hence there was no consideration to support the promise, and until “ after harvest” was indefinite and uncertain.

The other defense set up in the separate answer of the appellant was, that on or about the second day of January, 1879, when the said Hill was solvent, he (Scrafford) notified and requested respondent to proceed to collect said note without delay, which he neglected to do until October 6, 1879,’ at which time said Hill was, and ever since has been, insolvent. The legislatures of many of the United States have by statute provided that the surety may by notice require the creditor to proceed against the principal, but our legislature having failed to adopt any such provision, the rule of the common law prevails in this state. Mr. Brandt, in his work on suretyship (sec. 208), says: “ The great majority of cases on the subject hold, in the absence of any statutory provision, that if after the debt is due, the surety request the creditor to sue the principal, who is then solvent, and the creditor fails to do so, and the principal afterwards becomes insolvent, the surety is not thereby discharged. The ground upon which these decisions rest is, that the principal and surety are both equally bound to the creditor, who may have taken a surety in order that he might not have tó sue the principal. If the surety desires a suit brought against the principal he may himself pay the debt and immediately sue the principal.” (Jenkins v. Clarkson, 7 Ohio, 72; Carr v. Howard, 8 Blackf. Ind. 190; Davis v. Higgins, 3 New Hamp. 231; Nichols v. McDowell, 14 B. Monroe, Ky. 15; Frye v. Barker, 4 Pick. 382 ; Gage v. Mechanics’ National Bank of Chicago, 79 Ill. 62 ; 5 Nebraska, 484 ; 30 Mich. 143 ; 9 Cal. 557 .)

There being no error appearing in the record, the judgment of the court below is affirmed.