German Savings Ass'n v. Helmrick

1. Prom, notes — Extension—Barely, when, held. — An extension of time fora definite period was «'ranted to the principal maker of a note without the consent of the surety, and the contract for extension was indorsed on the back of the note. Surety held released.

I. The name of Ward appears on the face of the note-as a joint maker, and it was not competent for him to show that he signed it in a different capacity, or that he assumed a different liability. (Sto. Prom, notes, § 421, p. 564; Sclmver vs. Lovejoy, 32 Cal., 574; Hull vs. Porter, 27 Ills., 312 ; Derry Bank vs. Baldwin, 41 N. II., 434; Sweet vs. McAllister, 4 Allen, [Mass.] 353 ; Wright vs. Morse, 9 Gray, 337; Exeter Bank vs. Stowell, 16 N. FI., 61; Fleatli vs. Derry Bank, 44 N. II., 174; Drake vs. Maride, 21 Ind., 433; Draper vs. Weld. 13 Gray, 580 ; 20 N. Y., [Ct. of App.], 240.) II. The original notes being past due, and defendant; Ward, liable thereon by protest and notice,when the new notes, were executed by all parties as makers, and the old ones surrendered, this was a payment and not a renewal of the old notes, and defendants were all principal debtors on the notes sued on. (White vs. Van Horn, 19 Iowa, 189.) And Ward could have at once sued Helmrick & Co., for indemnity. (Wilkinson vs. Stewart, 30 Ill., 48.) III. A surety is not released by an extension of time to the principal debtor, unless his hands are thereby tied so that he cannot sue. An agreement not to sue on a claim presents 7io bar to an action on it. (Atwood vs. Lewis, 6 Mo., 392; Bond vs. Worley, 26 Mo., 253 ; Bridge vs. Tierman, 36 Mo., 439; Rucker vs. Robinson, 38 Mo., 154.) I. An agreement between the creditor and principal debtor to extend the time of payment, without the assent of the surety, will discharge the surety. (Dodd vs. Winn, 27 Mo., Mo. 501; Smith vs. Rice, 27 Mo., 505 ; Smarr vs. Sclmitter, 38 Mo., 478 ; Rucker vs. Robinson, 38 Mo., 154.)