Govan v. Binford

delivered the opinion of the court.

The plaintiff in error brought an action of assumpsit, in the *155circuit court of Carroll county, against the defendant in error, upon his guaranty of the payment of two notes, given by George K. Morton for the purchase-money of a slave sold to him by Mrs. Pugh, the testatrix.

The -defendant insisted, that he had been discharged from liability, in consequence of an extension of time given to Morton without his assent. The jury found for the defendant, and a new trial was refused. | This court has recognized the doctrine repeated!y, that if a creditor, without the consent of the surety, enters into a contract with the principal, upon a sufficient consideration to give! him an extension of time for a definite period, or enters into any contract with the principal, which in its consequences may have the effect of giving such an extension of time to him, the surety is released from his engagement. Burge on Surety, 203; 6 S. & M. 24; 4 Ib. 165; 6 Ib. 433; 7 Ib. 522.

If we concede to the defendant in error, that the agreement with Lucas, as proved by the witness, is binding upon the plaintiff in error in its full extent, yet it does not, in our opinion, make out a case for the defendant, which in principle can be distinguished from Wadlington v. Gary, 7 S. & M. 522, in which the court held, that the surety was not released by the agreement.

The witness, Davis, proves, that he heard Lucas say, “he had agreed to wait for the balance due on the first note till some time in June, and for the note last due till some time in November,” and that Lucas further said, “ Morton promised him and Crump, that if he failed to pay the notes at that time, he would give him a negro man named Fred, for the amount due on the two notes.”

In the case of Wadlington v. Gary, the agreement was to pay out of the proceeds of a certain execution, “and if any thing happened to prevent the payment of the note out of the proceeds of the execution, the debtor promised to transfer to the creditor a note on William Borrow, who was perfectly solvent, in payment of the note sued on.”

It was ruled by the court, that this agreement did not release the surety, because the creditor might still have sued the- prin*156cipal upon the note. In the case of Newell v. Hamer, 4 How. 692, it was held, that an agreement by a debtor to pay the debt at a future day, if an extension of time is given to him, and in default of paying on that day to deliver a specific article in payment, amounts only to an agreement to pay the debt at the time stipulated, and is' not such a consideration for forbearance as will prevent the creditor from suing. Concurring in this view of the law, we think the court erred in refusing to grant a new trial; and, therefore, reverse the cause, and remand the same.