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Myers v. First National Bank

George W. Myers v. First National Bank of Fairbury

Myers v. First Nat'l Bank, 78 Ill. 257 (1875)
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Court
Illinois Supreme Court · State Highest Courts
Decided
September 15, 1875
Judges
Scott
Citations
78 Ill. 257
Syllabus
1. Sureties—release by extension of time to principal, without their assent. Where an extension of time is given a principal debtor for the payment of money, by a valid and binding agreement, without the assent of the sureties, they are thereby released. 2. Consideration for agreement to extend time—payment of usurious interest. An agreement by the holder of a promissory note, made with the principal in said note, without the knowledge or consent of the sureties, to extend the time for the payment thereof, in consideration of usurious interest paid by the principal, and accepted by the holder of such note, is a valid and binding contract for an extension of time, and releases the sureties.
Summary
Appeal from the Circuit Court of Livingston county; the Hon. Nathaniel J. Pillsbury, Judge, presiding.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Scott

Text extracted by OCR from a scanned original; check the original for exact wording.

Mr. Chief Justice Scott delivered the opinion of the Court:

The law is well settled, that, where an extension of time is given a principal debtor for the payment of money, by a valid and binding agreement, without the assent of the sureties for its payment, they are thereby released. Danforth v. Semple, Sept. T. 1874. That principle is conclusive of the case at bar. Appellant was the security for the other makers of the note which is the basis of this action. An extension of time was given the principals to pay the indebtedness evidenced by the note, without the knowledge or consent of appellant. The consideration for the agreement was, that they would pay plaintiff interest at an usurious rate on their indebtedness. That consideration was paid by one of the principals, and was accepted by plaintiff. According to the doctrine of Danforth v. Semple, supra, the payment of such a consideration created a valid and binding contract for the extension of the time of payment of the note for the period agreed upon, and having been made without the knowledge or consent of the surety, he was thereby released.

Appellee has assigned a single cross error, viz: the court erred in sustaining appellant’s motion to strike from the record the stipulation of the parties to submit the cause for trial.

The evidence furnished by the affidavit on file is conflicting as to whether the stipulation was understanding^ placed with the files of the case, and for that reason we are not willing to say the court erred in its judgment. We adopt this view the more readily because it is apparent appellee has suffered no injury in consequence of the action of the court. It is not claimed appellee was not afforded ample opportunity to present all its evidence. The course pursued by the court was in the interest of justice. No injury came to appellee, and had appellant been compelled to try the cause on the stipulation alone, he would have been deprived of testimony that was all important to his defense.

The judgment will be reversed and the cause remanded.

Judgment reversed.

How later courts describe this case

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Cited by 13 cases

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1879–1880: 31881–1882: 21883–1884: 21885–1886: 11899–1900: 11901–1902: 11909–1910: 11911–1912: 11919–1920: 118792026peak 1879 · 3

Relies on it most ⓘ

  1. Lemmon v. Whitman75 Ind. 318 (1881)
  2. W. W. Kimball Co. v. Baker22 N.W. 730 (Wis. 1885)
  3. Glenn v. Morgan23 W. Va. 467 (1884)
  4. Foster v. Furlong78 N.W. 986 (N.D. 1899)
  5. Hamilton v. Prouty7 N.W. 659 (Wis. 1880)
  6. Condon Nat. Bank v. Rogers118 P. 846 (Or. 1911)

Most recent

  1. Boulter v. Joliet National Bank217 Ill. App. 330 (1920)
  2. Condon Nat. Bank v. Rogers118 P. 846 (Or. 1911)
  3. Many, Blanc & Co. v. Jacobson149 Ill. App. 240 (1909)
  4. Johnston v. Paltzer100 Ill. App. 171 (1902)
  5. Foster v. Furlong78 N.W. 986 (N.D. 1899)
  6. W. W. Kimball Co. v. Baker22 N.W. 730 (Wis. 1885)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

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