Hosea v. Rowley

• Decision Date: 31 August 1874
• Citation: 57 Mo. 357
• Parties: WILLIAM E. HOSEA, Respondent, v. CLAUDIUS A. ROWLEY and ABRAM NAVE, Appellants.
• Court: Missouri Supreme Court

57 Mo. 357

WILLIAM E. HOSEA, Respondent,

v.CLAUDIUS A. ROWLEY and ABRAM NAVE, Appellants.

Supreme Court of Missouri.

August Term, 1874.

Appeal from Buchanan Circuit Court.

B. F. Loan, for Appellants.

I. The facts in this case bring it fully within the rule which exonerates sureties. (Rucker vs. Robinson, 38 Mo., 158; Smarr vs. Schnitter, 38 Mo., 481.)

Judson & Barnard, for Respondent.

I. Mere forbearance, given to the maker of a note, will not release the surety from his liability. To discharge the surety it is necessary that the creditor should have made some valid agreement with the principal debtor, by which the creditor's right to enforce his contract is suspended, and his hands tied for a definite period. (Reynolds vs. Wait, 5 Wend., 501.) Such an agreement must have a valid consideration to support it. (Ford vs. Beard, 31 Mo., 459; Rucker vs. Robinson, 38 Mo., 154.)

II. The payment of interest in advance, or the payment of usurious interest, is not a sufficient consideration to support such an agreement and give it validity. (Marks vs. Bank of Mo., 8 Mo., 316; Wiley vs. Hight, 39 Mo., 130.)

NAPTON, Judge, delivered the opinion of the court.

This was a suit on a note for $2,000, due in four months, which was executed by Rowley and Nave, and was due April 22, 1871. Rowley was principal and Nave surety, though the note did not on its face show this. When the note fell due, the principal debtor, Rowley, paid on it $400 and interest in advance, at the rate of 12 per cent. for four months; and this was repeated at the end of another four months. Receipts on the note were entered for these amounts. The understanding was, that the principal debtor should have four months longer; but there is no written instrument to that effect, nor any verbal one, except what may be inferred from the receipt of interest in advance for the four months, and a declaration of the creditor to the principal debtor, that he would wait so much longer.

The defense of the surety is, that he was discharged by giving this further time to the principal, without his consent.

In the case of Oxford Bank vs. Le wis, (8 Pick., 458) it was decided that taking interest in advance did not constitute such a promise for extension as precluded suit by the holder against the principal. This view of the law was re-iterated in Blackstone Bank vs. Hill, (10 Pick., 153); and it is there observed: “The principle is stated in Oxford Bank vs. Lewis, that to discharge the surety, the contract for new credit must be such as will prevent the holder from bringing an action against the principal. The plaintiffs were not precluded, during such supposed renewed terms of credit, from suing the principal in the case under consideration.”

“The strongest circumstance showing a renewed credit, is the receiving interest in advance; but in the case of the Oxford Bank vs. Lewis, where that point was expressly adjudicated, it was held that that circumstance did not tie the hands of plaintiffs, if at any time they thought it necessary for their security to bring an action.”

These cases were cited by this court with approbation in Rucker and others vs. Robinson and others, (38 Mo., 158); and the court in that case further observed: “It is well settled, that a covenant not to sue upon a claim, cannot be pleaded to, and presents no bar to, an action on the claim; the only remedy of the covenantee being a suit for damages on the covenant or agreement.” And to support this position the court cites the cases of Atwood vs. Lewis, (6 Mo., 392); Bircher vs. Payne, (7 Mo., 462); Bridge vs. Tiernan, (36 Mo., 439); and proceeds thus: “Hence it has been held, that an express covenant not to sue the principal debtor for a certain...