Stearns v. Sweet

• Decision Date: 30 September 1875
• Citation: 1875 WL 8510,78 Ill. 446
• Parties: HERMAN D. STEARNS et al.v.SAMUEL H. SWEET et al.
• Court: Illinois Supreme Court

78 Ill. 446

1875 WL 8510 (Ill.)

HERMAN D. STEARNS et al.

v.SAMUEL H. SWEET et al.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Will county; the Hon. JOSIAH MCROBERTS, Judge, presiding.

This was an action of assumpsit, by Samuel H. Sweet, Wesley Dempster and Charles Hutchinson, partners, against Samuel C. Stearns, Herman D. Stearns, Frank Bush and Edward A??ken, upon five promissory notes.

Samuel C. Stearns, the principal, not being found, a trial was had as against the sureties, before the court, without a jury, resulting in a judgment in favor of the plaintiffs for $1000. The securities appealed.

Mr. C. B. GARNSEY, for the appellants.

Messrs. HILL & DIBBELL, for the appellees.

Mr. JUSTICE SCHOLFIELD delivered the opinion of the Court:

Assumpsit was brought by appellees against appellants, and another, on five promissory notes executed by the latter to the former, bearing date April 5, 1870, and payable, respectively, in four, six, eight, ten and twelve months from date, for different amounts, the precise statement of which is unnecessary for the solution of the question before us. The notes, by their terms, do not require the payment of interest.

Appellants pleaded first, non assumpsit, and secondly, that they were sureties only; that appellees were informed of that fact, and that they extended the time of payment of the notes for good consideration paid them by the principal, without the knowledge or consent of appellants. Issue was joined on the pleas, and trial had, resulting in a judgment in favor of appellees for $1000.

The only question is, does the evidence show that appellees entered into a contract with the principal in the notes, extending the time of payment, without the knowledge or consent of appellants?

The following indorsement appears on each of the notes: “Interest paid on the within note to July 26, '71, at the rate of ten per cent per annum;” and appellants each testifies that this was done without his knowledge or consent. Samuel C. Stearns testifies that he was the principal maker of the notes, and the appellants were his sureties; that the interest was paid at the time the indorsements on the notes were made, which he thinks was on the 26th day of July, 1871. There is no other evidence tending to show a contract for an extension of time.

We do not understand the counsel as contending that the payment of interest by the principal for time past, without the knowledge or...