Another v. Burke

• Decision Date: 01 January 1854
• Citation: 11 Tex. 694
• Parties: CRUGER AND ANOTHER v. BURKE AND OTHERS.
• Court: Texas Supreme Court

11 Tex. 694

CRUGER AND ANOTHER

v.BURKE AND OTHERS.

Supreme Court of Texas.

1854.

See this case in connection with the same case reported in 8 Tex. R., 66, for when the taking of a mortgage from the principal debtor, by the creditor, will amount to a discharge of the sureties in the original contract. (Note 95.)

Appeal from Harris. The principal facts will be found in the report of same case on former appeal, in 8 Tex. R., 66. There was evidence tending to prove that the mortgage was given upon a contract to extend the time of payment. Verdict and judgment for defendants. Motion for new trial overruled. Plaintiffs appealed.

C. B. Sabin, for appellants.

Palmer & Jordan, for appellees.

LIPSCOMB, J.

The only question presented for consideration in this case is, as to the legal effect of the mortgage contract, entered into between the plaintiffs and A. J. McGowan. If its legal effect was to postpone the payment or the collection of the debt due from McGowan to the plaintiffs, the securities, the present defendants, are discharged from all liability. There is no evidence that this mortgage was entered into with the privity or assent of the securities. I am of the opinion that its legal effect was to constitute a new contract, giving time for payment on a valid consideration; and, in a very few words, I will give my reasons for the conclusion to which I have arrived.

The mortgage embraces in it, with the original debt, one from McGowan not embraced in the first, and not previously secured to be paid by McGowan. In this mortgage contract, McGowan undertook to pay to the plaintiffs a higher rate of interest than they could have recovered on the original contract to which the defendants were securities. The time of payment was set by the mortgage beyond the time of payment of the original debt. If this mortgage had rested upon the old consideration only, it would not have been such a new contract, giving time, as would have discharged the securities; because it could not have interposed a bar to the prosecution of the action on the original promise. The mere taking of collateral security, the better to secure the payment of the original debt, can never discharge the securities to the original. They are not injured but benefited by such collateral security, provided the creditor has not given this additional time on a consideration valid in law. The new consideration in this case, is the security for another debt, and the additional interest on the old debt, forming in my opinion a valid consideration to support the extension of the time of payment of the debt stipulated in the mortgage.

There is no doubt that it was the province of the Judge to charge the jury as to what was the legal effect of this mortgage. He seems to have submitted the question to the jury; but the finding of the jury was the same as the legal construction of the mortgage should have been declared by the Judge, which finding was sanctioned by the Court; the plaintiff, therefore, sustained no injury from the Judge failing to declare the legal construction of the mortgage, and it is no ground for reversal of the judgment. The doctrine of the effect of a contract founded on good consideration, giving time by the creditor to his debtor without the consent of the securities, in discharging such securities, was fully and correctly discussed and decided by this Court when this case was before it at a previous Term, and nothing was left open but the legal construction of the mortgage. The present appellants had obtained judgment in the Court below, and the defendants then appealed. The judgment was reversed and...