Colvin v. Glover
| Decision Date | 26 April 1920 |
| Docket Number | 357 |
| Citation | 220 S.W. 832,143 Ark. 498 |
| Parties | COLVIN v. GLOVER |
| Court | Arkansas Supreme Court |
Appeal from Bradley Circuit Court; Turner Butler, Judge; affirmed.
Judgment affirmed.
D. A Bradham, for appellant.
1. Appellants were mere sureties for Belongy on the note. Parol evidence was admissible to show that fact. 92 Ark. 604; 54 Id. 97; 8 Cyc. 262 K.
2. Appellee having accepted interest which was not due, and thus extended the time of payment the sureties were released. No place of payment having been specified in the note, each of the parties were entitled to presentment for payment when due, and the note not having been presented for payment, the sureties were released. Acts 1913, No. 81, § 78; K. & C Dig., § 7018.
3. Appellee having at different times granted an extension of time to the principal without the knowledge or consent of the sureties while the principal was solvent, after his insolvency appellee was estopped to pursue the sureties. 54 Ark. 100, 97; 8 Cyc. 241 B; 2 Herman on Est., etc., §§ 937-8; 25 So. 200.
B. L. Herring, for appellee.
Appellants and Belongy were all makers and jointly liable. 96 Ark. 272; 106 Id. 157-9. The proof shows that the debt has not been paid, and there has been no alteration of the contract and no extension of time for a consideration, and appellants are primarily liable. 90 Ill. 537. K. & C. Digest, § 7010, has not changed the law. There was no place of payment mentioned in the note and there was no case for a jury.
Appellee sued appellants, G. B. Colvin and P. M. Day, as joint makers with one P. M. Belongy of a negotiable promissory note to appellee for the sum of $ 300, bearing date of January 18, 1916 and payable nine months after date, with interest from date at ten per cent. per annum.
Belongy was not sued, and appellants defended on the ground that they signed the note as sureties for Belongy, and that they were discharged by reason of an extension of time of payment granted by appellee to Belongy. They defended also on the ground that they were discharged by the failure and neglect of appellee to make demand for payment and give notice of nonpayment.
There was a trial of the issues before a jury, but the court directed a verdict in favor of appellee. This appeal tests the question of legal sufficiency of the evidence.
Appellants signed the note on its face with Belongy, but the testimony tends to show that they joined in the execution of the note merely as sureties for Belongy, the principal, and that appellee was apprised of that fact. The evidence to that effect was competent. Vestal v. Knight, 54 Ark. 97, 15 S.W. 17.
Appellee testified that about a week before the note became due Belongy came to him and stated that he wanted to pay $ 30 on the note and procure a little more time, and that he (appellee) told Belongy that the proposed agreement would be satisfactory to him and that he could pay the money into a certain bank where the note had been left.
Appellee was asked to state when the payment of $ 30 was made, and his answer was that he did not know. There is an endorsement on the note showing the payment of the $ 30, but it is not disclosed from the endorsement when the payment was made, nor is there any other testimony tending to establish the date of this payment. Neither Belongy nor any one connected with the bank where the payment was made testified in the case.
An extension of time of payment to the principal without the consent of the sureties operates as a discharge of the latter from further liability, but such extension must have been for a definite time and upon valid consideration. At least such was the settled law in this State prior to the enactment of the Negotiable Instruments Law, Acts 1913, p. 1060. Thompson v. Robinson, 34 Ark. 44; Vaughan v. Vernon, 82 Ark. 28, 100 S.W. 92; Kissire v. Plunkett-Jarrell Grocer Co., 103 Ark. 473; Thornton v. Bowie, 123 Ark. 463, 185 S.W. 793.
Payment of interest in advance of maturity constitutes sufficient consideration for an extension of the time of payment. Vestal v. Knight, supra. The difficulty with the defense of appellants is that they failed to prove the essential facts constituting it. In other words, they failed to prove that there was an extension for a definite time based on sufficient consideration. The burden of proof was on them to show this. Appellee testified that there was an agreement for an extension, but he did not know when the money was paid, and there is no other...
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