Coster v. Mesner

• Decision Date: 31 January 1875
• Citation: 58 Mo. 549
• Parties: GEORGE W. COSTER, Appellant, v. PETER MESNER, et al., Respondents.
• Court: Missouri Supreme Court

58 Mo. 549

GEORGE W. COSTER, Appellant,

v.PETER MESNER, et al., Respondents.

Supreme Court of Missouri.

January Term, 1875.

Appeal from Jasper Circuit Court.

Johnson & Botsford, for Appellant.

I. The receipt of a sum of money, in payment of the interest on the note to a future day, did not, without reference to, or against, the express intention of the parties, constitute, in law, a contract to extend the time of payment. (Freeman's Bank vs. Rollins, 13 Me., 202; Mariners' Bank vs. Abbott, 28 Me., 280; Oxford Bank vs. Lewis, 8 Pick., 458; Blackstone Bank vs. Hill, 10 Pick., 129; Central Bank vs. Willard, 17 Pick., 150; 1 Par. Notes and Bills, 241.)W. H. Phelps, for Respondents.

I. The receipt of interest in advance after maturity is sufficient consideration to discharge a surety, and is an extension of time. (1 Par. Bills and Notes, 240; N. H. Sav. Bank vs. Colcord, 15 N. H., 119; Chute vs. Pattee, 37 Me., 102.)

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced by plaintiff against defendants, Mesner, Motherspaw & Gates, upon a promissory note. Mesner failed to appear, and judgment was rendered against him by default. Motherspaw and Gates filed their answer, stating that they signed the note as security for their co-defendant, Mesner, which plaintiff well knew at the time he took the note; that after the note became due, the plaintiff, in consideration of forty dollars to him paid by Mesner, the principal, extended the time of payment thereof without the knowledge or consent of the securities. The replication did not deny that Motherspaw and Gates were sureties, but it denied extending the time of payment.

Upon the trial the evidence showed, that on the 10th day of August, 1872, after the note was due, Mesner paid forty dollars on the same, and that the plaintiff with that money extinguished the accrued interest, and applied the balance in payment of the interest up to the 20th day of September following. There was no evidence to establish any agreement in reference to an extension of time. The court then at the instance of the defendants instructed the jury, that, if defendant, Peter Mesner, on the 10th day of August, 1872, paid plaintiff on said note a sum of money, which plaintiff received on said note as the full payment of the interest on said note to the 20th day of September, 1872, without the knowledge or consent of defendants Motherspaw and Gates, they will find the issue for the defendants.

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