The questions in this case arise upon a finding of facts by the district court, and we are limited to the • inquiry, whether, in the conclusions of law from those facts,, there was error.

It is claimed that the district court should have found the issues for the defendants in the action, and two grounds have been presented as those on which such a finding should have been made. The first is, that the facts show an agreement to give time, made by the creditor with the principal debtor; the second, that the facts show a legal fraud on the rights of sureties, which prevented any liability attaching to them on. the note.

*606We do not think an inquiry into the first ground is excluded by the finding of the court, that there was no express • agreement to extend the time of payment, made after the delivery of the note. That finding still leaves open the question, whether the other facts found constituted, in law, a subsequent agreement to extend time. If, independent of the negative finding, the other facts, in their legal eifect, showed the essential requisites of a valid agreement to extend the time for the payment of the note, then such an agreement ought to have been found by the court. Those facts, however, can not authorize an inference of any other fact which would show that there was an agreement. This is excluded, both by the mode in which the case is presented to us, and by the finding that there was no express agreement. It is in this sense we understand that finding — upon the question whether there was a subsequent agreement, it wholly excludes the taking into consideration any other facts than those found. We can not, therefore, regard the facts as evidence from which we might infer other facts, and then, from other facts, conclude that there was a subsequent agreement to extend the time for the payment of the note. We are limited strictly to the facts found, and must decide on their legal effect.

The note did not, in terms, specify when it was payable, but was to bear interest from date, payable annually. We think the construction claimed by the counsel for the plaintiffs in error, is the correct one; that, in legal effect, the note was payable immediately, and that the intent in providing as to the payment of interest to be made annually, was to meet the contingency that immediate payment should not be demanded, or, being demanded, should not be obtained until a year or more might elapse, and thus guard against any loss to the lender.

The note, in legal effect, being payable immediately, it necessarily follows that any parol understanding before and at the time of the delivery of the note, can not contradict ,such its legal effect. Thurston v. Hays, 6 Ohio St. 1. In this case there was a parol understanding, at the time the *607loan was negotiated, that two per cent, should be paid in advance, in addition to ten per cent, to be included in the note, for the use of the money for one year, and the same as to any other year for which the loan should be extended. The effect of this understanding and the payment under it, of the two per cent, in advance, as creating an obligation to extend the time of payment, must be controlled and limited by the legal effect of the note. While the lender was willing to loan his money from year to year on the payment of the usury in advance, he insisted on and received a security, by the terms of which he might, if so disposed, close the arrangement by the collection of his money. In making the loan and contemplating an extension of it from year to year, he may have desired a security which he might immediately enforce, if circumstances should so require. ITe did take a note payable immediately, and the payment of which he could enforce at any time, unless bound by some contract not to do so. The parol understanding, at and before the time of the delivery of the note, can not be permitted to restrict the terms of the note. If that understanding can be regarded as a fact in the case, it can only be taken in connection with the other facts, the giving the note, and the terms of the note. And the facts, taken together, must have their appropriate legal effect.

In view of this difficulty, reliance is placed on the payment made at the end of the first year. It is claimed, that although the parol understanding can not control the legal effect of the note, it may be used to explain the intent and object of the payment of sixty dollars in addition to the year’s interest, and to show that such payment was the consideration for, and established an agreement to extend the time of payment for one year. The argument is ingenious, but, we think, it does not overcome this difficulty, that, if the parol understanding can be resorted to for the purpose of showing the object and intent of the parties, in making and receiving the payment, still that parol understanding can not be properly separated from the accompanying fact, the taking a note which was payable immediately. If the note, during the first year, was held as a security, available at any moment — if such was the intent of *608the parties, shown by their acts — if such the legal effect of the acts done, taken together — there can be no propriety in concluding that there was a different intent or effect during the second year. Every reason which could operate to hold the .note as a security immediately available during the first year', would apply to the second. It is assuming the very point in 'dispute, to say that the note is to be regarded, in view of the inquiry as to the effect of the payment at the end of the first year, as if then payable, or as a note payable one year after date. On the contrary, the understanding, and the expression in the note as to interest, contemplated that the loan was to continue; but the terms of the note also showed that, as a security for the loan, it was to be available at any time.

It will be observed that we have not the simple case of a payment of interest in advance, from which an agreement to extend the time of the payment of the debt may be inferred; and of which agreement, it has been said in a recent case, such payment would, as a general rule, be prima facie evidence. The inference of an agreement being authorized by a general proposition, “that a party receiving the consideration is bound to perform the thing for which the consideration was paid and receivedPeople’s Bank v. Pearsons, 80 Vermt. 711—715. We have the case of the payment of a sum of money by a principal debtor to his creditor, under particular circumstances, found and stated, and which circumstances, taken in connection with the payment, the sureties claim, constitute, in law, an agreement to give time. From those circumstances, it appears that the payment was not made under an agreement then newly made, but in pursuance of a previous understanding between the parties had before and at the time of the delivery of the note. Such is the express finding of the district court. If we disregard that understanding, we have the mere fact of the payment, in part, of a debt due. If we take into consideration the understanding in pursuance of which the payment was made, then the consequences which have been before stated must follow. The plaintiffs in error fail to make out a subsequent agreement to extend time, because they can not be permitted to take one part of the understanding or *609arrangement as to the loan, and reject the other by which it is qualified and explained.

It is claimed that the case of McComb v. Kittridge, 14 Ohio, 348, is an authority, decisive of this case. The views we have expressed, proceed on the circumstances of this case, and in no respect militate with the decision in McComb v. Kittridge. We understand that case as deciding that a valid promise to pay interest on a note past due, for a definite future period, is a sufficient consideration for an agreement to forbear for that time. The case is cited to sustain that proposition, in an elaborate review of the authorities, on the subject of the discharge of sureties by giving time. 2 Am. Lead. Cas. 307. There is language in the opinion delivered in the case of McComb v. Kittridge, from which it might be inferred, that a note for usurious interest alone, would, in itself, constitute a sufficient consideration. But as well remarked, by counsel for plaintiffs in error in this case, when the facts and the entire opinion are examined, it appears that' the note was regarded as only in part the consideration, the entire consideration being, as shown by the facts, the promise to pay ten per cent, interest, for the time specified, the-usurious part of which was witnessed by a separate note. The reasoning of the judge also shows that there was an excess of consideration, and though that excess being usurious could not be recovered, it did not, under our law, vitiate the-residue, or make it an insufficient consideration.

It is proper, also, to remark, that in the case of McComb v. Kittridge, there was evidence of an express promise to extend the time of payment, and the only question was, as to-the sufficiency of the consideration. The court was not called on to infer a promise from the receipt of the consideration, nor were there, as in this case, circumstances showing-that no such inference could be properly made. We might assume, that the actual payment of usurious interest would be a sufficient consideration for an agreement to give time,, and it could, in no way, affect the views we entertain and have expressed, as to the point under consideration. Whether such payment would bo a sufficient consideration, is a ques-*610tion, as to -winch different opinions have been entertained, but it is one which does not necessarily arise in this case, and which we do not decide.

We proceed to the second ground on which it is claimed that the district court should have found for the defendants in the action — fraud in the contract of loan. The case of Selser v. Brock, 3 Ohio St. 302, decides that the exaction of usury in the contract of loan, did not operate as a fraud upon the sureties. The understanding that two per cent., in addition to the interest expressed in the note, was to be paid in advance, and that the agreement to pay this was not to be contained in the note, is disclaimed by counsel for plaintiffs in error, as the fraud on which they rely. The real ground of complaint is stated to be “ that Brown and Robison agreed, that in consideration of the annual payment of the usurious premium in advance, and the legal interest at 'the end of each year, the loan should be continued for one year, and so long thereafter as Robison wanted the money — that is, for an indefinite period of time — without the knowledge or consent •of the sureties — and that that agreement was executed for two years after the note was due.”

The ground here presented is, we think, really the one already examined, and untenable for the reasons already expressed. If there was a parol understanding, to the effect ■claimed, it was not consummated. The fraud, if any, was without injury. The giving time after the execution of the note, depended not on any previous understanding, but on the discretion of the lender. So the sureties were not affected by any such previous understanding — the terms of their contract were not affected by it, and they had the right at any time to pay off the debt, and proceed against their principal, or to pursue any other remedy which the law might give.

If there was, according to the legal effect of the acts done, no agreement which bound the creditor to give time, from year to year, or for an indefinite time, what afterward occurred can only be regarded as a voluntary indulgence, which very clearly does not discharge the sureties.

*611The court, in this case, expressly find that the creditor, at no time, attempted any concealment from, or made any misrepresentations concerning the terms of the loan to the sureties. He exacted usurious interest, but that, it has been held, is not fraud, and we see nothing else in the case upon which .such a charge can be sustained.

Judgment affirmed.

was unable to see his way clear to the •conclusions to which the majority of the court arrived, and, therefore, wishes to be considered as doubting their correctness.

dissenting: The contract between a creditor and sureties is one requiring, on the part of the creditor, good faith to be exercised toward them in his dealings with the principal. Their liability, by the law of their contract, only arises upon the default of their principal. If that default occurs, on the part of the principal, under circumstances giving a right of action, for such default, to the creditor, against the principal, we all agree that the sureties are liable, by the terms of their contract, as sureties, for the damage sustained by the creditor by reason of such delinquency. The surety’s liability arises, not from the debt — for it is not his debt, he is not the debtor — but it arises from his contract merely; he has, therefore, always the right to stand upon the terms of the contract. And it has, therefore, always been held in this State, as well as elsewhere, that sureties shall not be bound beyond the scope of their undertaking; and that their liability shall not be extended, by implication, beyond the terms of their contract. Nothing can be more just and reasonable than this rule of construction. The sureties, as well as the creditor or payee, are the creditors of the principal. It is in faith of his performing, precisely as he has undertaken to do, toward the creditor, that the sureties have consented to become responsible that he shall so perform. The creditor, therefore, after *612having obtained such bail or pledge for his so truly perform ing, must not prevent or persuade the principal from performance, and then exact his pledge or penalty from his bail for such delinquency. While the sureties entered into an express-contract to answer for damages arising to the creditor from, a delinquency of the principal to perform his undertaking to pay his debt at the time and in the manner specified in the undertaking, the creditor came into an implied contract with the sureties that he would, in nowise, prejudice their interests, or increase their hazard, by preventing or persuading the principal from performing his undertaking at the time and according to the terms expressed by his contract, and for the faithful performance of which, by the principal, the sureties have' so given the principal their confidence, and undertaken to answer for his default.

Without imputing any intentional fraud to the creditor, Rrown, in his dealings with the principal, I regard them inconsistent with the performance of this implied contract toward the sureties, on his part, which the good faith due under the contract required of him, to render them holden for the delinquency of the principal.

The contract, upon which the sureties undertook for the principal in this case, was the payment of a promissory note of three thousand dollars on demand, dated and delivered September 25, 1853. When that note was delivered, the contract was consummated. The principal undertook to pay according to the terms of the note. The sureties undertook to answer for his default in that undertaking, as thus expressed, and for nothing more. Any extension of the time of payment, by a binding contract on the part of Brown with the principal, Robison, without the consent of the sureties, we all agree, would be a discharge of the sureties in this case. Upon this point, I maintain, the evidence is clear and sufficient to show the existence of a binding contract by Brown, with Robison, to extend the time of payment; and that the sureties became thereby discharged. The finding of the court below, it is agreed, submits for our consideration upon this point only the question of an implied agreement. The facts *613are found and presented in the record, and are, in effect, the same as a special verdict, upon the record. Do these facts, in law, constitute an undertaking on the part of Brown, for a sufficient consideration, to extend to Robison, the debtor, the time of paying the note ? It is not doubted that it was ■competent for the parties, Brown and Robison, by verbal contract, at any time after the note was delivered, to extend the time of payment named in the note, the same as if the note had been executed by Robison ,alone. Let us, then, recur to the evidence applicable to those two, as debtor and creditor.

The court -find, in substance, that Brown agreed to make the loan to Robison of* $3000, for one or more years, at the rate of ten per cent, interest, and the additional sum of sixty dollars per year, two per cent., to be paid in hand on making the loan; that Brown acceded to the proposition; that he procured the sureties to sign a note for him as principal, payable on demand, on ten per cent, interest, and presented it to Brown, without any new negotiation, and Brown accepted the same and made the*loan, and received, from the $3000, sixty dollars, the two per cent, for one year, as so agreed between the parties at the time of negotiating the loan. And that at the expiration of the year, Robison paid the ten per cent, interest expressed in the note, $300, and also, $60, as two’ per cent, extra interest for another year’s extension, which was also so received by Brown.

Now, I do not say that the terms of the loan, and delay of payment verbally expressed and agreed upon before the delivery of the note, could at all vary or qualify the express terms of the note. Upon receipt of the note, Brown might have refused the execution of the verbal contract for delay, ■and not have received the two per cent, for such delay, and at once have commenced suit upon the note. I only make reference to this former verbal agreement to explain the acts of the party in execution of it after the delivery of the note. The bare fact that after the execution and delivery of the note, Robison paid Brown $60, would be of itself, I grant, quite unimportant; but when it is proved that Robison paid *614it, and Brown received it in consideration of an extension of time on the note, it then becomes very material.

Now in this case, the proof is, that Brown promised Robison that, for a note drawing ten per cent, interest, and twe per cent, in hand paid, he, Brown, would extend the time of payment of the loan, for one year. The note was delivered by Robison, but not expressing the agreement for delay of payment. The terms proposed by Brown, were simply these: I lend my money on a note, drawing ten per cent., of this-form, with the right to collect the same at any time within the year; price of that right to collect within the year, is two per cent.; if the borrower shall see fit to purchase that right at such price, he can then have the right to retain the money for one year, instead of holding it only upon liability of a present demand. This standing proposition by Brown, was unknown to the sureties, Yet, after the delivery of the note, Robison paid, in money, the two per cent, in addition to the ten per cent, note, which was a full execution of the agreement on his part, and a full payment of the price and consideration for delay promised by Brown; and this consideration was received and so held by Brown without any objection, without applying it upon the note, or in any other way accounting for the sixty dollars so paid and received. I can not imagine how it could possibly be claimed under this-proof, that if the note had been signed only by Robison,. Brown could, the next- day after so having received from him the $60, for extension of time, have maintained, successfully, a suit against him upon the note, as over due. And yet,, such a result would necessarily follow, from the opinion of my brethren in this case.

And it has never been questioned in this State, since the case of the Bank of Steubenville v. Carroll’s administrator (5 Ohio Rep. 207), that any act on the part of the creditor, which destroys or suspends his right to a present, continuing pursuit of his remedy against the principal, absolves the surety from his liability for the default of the principal.

It seems to me that while the holding in the case of McComb v. Kittridge, that a valid promise to pay interest is a good con*615sideration for an extension of time, an actual payment and receipt of the interest ought to be. Indeed, I regard this a much stronger ease for the sureties, than that of McComb v. Kittridge, upon the ground upon which that case was decided. That case was embarrassed by the objection, that the undertaking to pay the consideration for the extension of time, was one that could not, perhaps, be enforced; and it was only by first determining that it could, that the court, finding that the creditor might thereby compel a payment of money for the extension, held that the agreement to extend the time, was supported by a consideration.

To further illustrate the application I make of the verbal agreement of the parties made before the delivery of the note, and acted upon after, let us suppose a case in which the consideration for the extension had been in part, or all, other than a payment of money, as in this case, in addition to the interest expressed in the note. If Brown had, in his verbal negotiation, proposed to Robison to accept a note payable on demand for the loan ; and also to give the further time of a year, on condition that Robison should accompany him to New York, and assist him in the transaction of certain business there, for his, Brown’s, benefit; or, in consideration that Robison should procure and deliver to him a certain article of property ; the contract in law, thus verbally made, would, in each case alike, on delivery of the note, be inoperative. But, suppose in those cases, as in this, that there had been an actual performance by Robison, and an acceptance by Brown, after the delivery of the note, and without any further express contract, can it be possible that the implied contract would not be operative upon Brown ? It seems to me it could not be doubted. And it is impossible for me to perceive wherein the present state of facts, as proved, is less conclusive.

I think the proof in this case clearly shows that the sixty dollars paid by Robison, and received by Brown, after the delivery of the note, and at the time of receiving the loan, was paid and received for an extension of time, and for no other consideration. And, again, at the end of the first year, the transaction was so regarded, treated and affirmed.by both *616of the parties — Brown not offering, nor Robison asking to have the sixty dollars applied in any other manner. The same is true of the sixty dollars paid and received for the second year’s extension of time. And I can not consider it possible that any jury, upon this evidence, could fail to find the fact of the money having been so paid and received, if an action, immediately after the payment of either sixty, had been brought by Robison to recover it back.

I am clearly of the opinion, therefore, that Brown did, in this case, on the delivery of the note of the principal and sureties for $3,000, and making the loan to Robison, agree with him, for the consideration of sixty dollars, so then paid and received, to extend the time of payment of the note for one year. I regard the proof equally clear that, at the expiration of the first year, upon Robison’s paying him the $300 additional interest, for that year, Brown again received from Robison sixty dollars, with the implied understanding between himself and Robison, based upon his original verbal promise, and already acted upon and executed between them for one year, that he would again give Robison a like extension for the second year; and this implied contract, executed by both the parties, was, in like manner, ratified and affirmed by both, at the expiration of the second year.

I, therefore, hold that the sureties were thereby absolved from their liability upon the note; and that the judgment of the district court ought to be reversed.