Scott v. Scruggs

• Decision Date: 25 May 1892
• Citation: 11 So. 215,95 Ala. 383
• Parties: SCOTT ET AL. v. SCRUGGS.
• Court: Alabama Supreme Court

11 So. 215

95 Ala. 383

SCOTT ET AL. v. SCRUGGS.

Supreme Court of Alabama

May 25, 1892

Appeal from circuit court, Morgan county; H. C. SPEAKE, Judge.

Action by T. M. Scruggs against J. F. Scott and H. S. Freeman on two promissory notes. Defendant Scott pleaded the general issue and defendant Freeman pleaded, in addition to the general issue, by a special plea, that he signed the notes simply as surety for Scott; that this fact was well known to plaintiff and that the latter, by an agreement made between him and defendant Scott, for a valuable consideration, extended the time of the payment for a definite time, without his knowledge or consent, and that thereby he (Freeman) was discharged. The court gave a general instruction in favor of plaintiff, and refused the following, requested by defendants: "(1) If the jury find that the defendant Freeman signed the notes, which are the foundation of this suit, solely as surety for the defendant Scott, and that this fact was known to the plaintiff at the time of the making of the notes; and if the jury also find that the plaintiff without the knowledge or consent of the defendant Freeman, by an agreement between him and the defendant Scott, for a valuable consideration, extended the time of the payment of the said notes for a definlte time, then the defendant Freeman is discharged as surety, and the verdict must be in favor of the defendant Freeman. (2) If the jury find that the defendant Scott paid to the plaintiff the whole or any part of the interest on the notes, which are the foundation of this suit, in advance, as a consideration for the extension of the time of the payment of the said notes for a definite time, and that the plaintiff accepted the said payment, and in consideration thereof agreed to extend the time of the payment of the said notes for a definite time, such payment of the whole or any part of the said interest in advance was a valuable consideration, and sufficient to sustain the agreement for the extension of the payment of the said notes and if the jury also find that the defendant Freeman was only a surety on the said notes, and that this agreement for the extension of the time of the payment of the notes was made without his knowledge or consent, then he is discharged as such surety, and their verdict must be in his favor."

From a judgment for plaintiff, defendants appeal. Reversed.

Morris A. Tyng and W. R. Francis, for appellants.

Harris & Eyster, for appellee.

COLEMAN J.

The authorities are uniform in holding that any agreement supported by a valuable consideration, made by the creditor and principal debtor, without the assent of the surety, by which the debt of the principal is extended, operates a discharge of the surety. Railroad Co. v. Brewer, 76 Ala. 142. An agreement for the extension of a debt founded upon a partial payment made after maturity is not supported by a sufficient consideration to discharge a surety, but if the partial payment be made before the maturity of the debt it is sufficient to support an agreement for the extension of the debt, and if made without the assent of the surety he will be discharged. Brandt, Sur. § 306, and note. Payment of interest on a note...