Binnian v. Jennings

• Decision Date: 13 June 1896
• Parties: BINNIAN v. JENNINGS ET AL.
• Court: Washington Supreme Court

45 P. 302

14 Wash. 677

BINNIAN v. JENNINGS ET AL.

Supreme Court of Washington

June 13, 1896

Appeal from superior court, King county; T. J. Humes, Judge.

Action by Henry Binnian against W. J. Jennings and F. H. Whitworth. There was judgment against Jennings on the pleadings, and from a judgment in favor of the defendant Whitworth plaintiff appeals. Affirmed.

Hoyt C.J., dissenting.

C. E Bowman, for appellant.

Stratton Lewis & Gilman, for respondents.

DUNBAR J.

This action was brought by the appellant against defendant W. J Jennings and respondent F. H. Whitworth on a promissory note. Judgment was taken against Jennings on the pleadings. Whitworth answered separately, admitting the execution of the note, but denying any indebtedness, and setting up as an affirmative defense that he signed as a surety only, and that Binnian knew that he so signed, and that appellant, Binnian, and defendant Jennings had entered into an agreement for a valuable consideration for the extension of the time of payment of the note without his knowledge or consent, and asked to be discharged from any liability thereon. The trial resulted in a verdict in favor of the defendant Whitworth, respondent here. The action of the court in giving certain instructions to the jury, in refusing certain other instructions asked for by the plaintiff, and in refusing to grant plaintiff's request to instruct the jury to bring in a verdict for the plaintiff when the defense rested, is alleged as error. The plain and only issue in this case was whether or not the plaintiff, for a valuable consideration, extended the time of payment of the note without the consent of knowledge of the surety. It was alleged in the answer that such was the case. There was testimony to sustain the allegations of the answer, and, the jury having passed upon the sufficiency of the testimony, it is not subject to review here. It is argued by the appellant that a surety is not discharged by a mere extension of the time of payment without his consent, unless there is a valid agreement to extend, based on a legal and valuable consideration, precluding the creditor from suing as soon as he has a right to sue under the original contract. This proposition is not disputed by the respondent, and, as far as we are able to ascertain, it is not involved in this case. The consideration here was the payment of interest in advance. Mr. Brandt, in his work on Suretyship and Guaranty (section 354), quotes approvingly the reason for the rule announced in McComb v. Kittridge, 14 Ohio, 348, where the court said: "It is a valuable right to have money placed at interest, and it is a valuable right to have the privilege at any time of getting rid of the payment of interest by discharging the principal. By this contract the right to interest is secured for a given period and the right to pay off the principal and get rid of paying the interest is also relinquished for such...