Agee v. Steele , 8 Ala. 948 ( 1846 )

ORMOND, J.

A contract between the creditor and the principal debtor, which prolongs the time of payment of the debt, without the consent of the surety, absolves him from liability for the debt. A contract to produce this result, must be one which is obligatory on, and may be enforced by the parties to it, and the single question is, what is the nature of the contract relied on in this case, for the discharge of the surety.

The verbal agreement about the purchase of the land, was clearly invalid under the statute of frauds, and was so admitted to be in the argument, and the written contract is equally destitute of validity, for want of consideration. It was a mere gratuitous promise, to wait with the debtor for two years, to enable him to pay by instalments, the debt which he owed, and the money which was advanced upon the sale of the land, and created no legal obligation whatever 'upon Steele, who might have disregarded it, and brought suit immediately for the debt. It did not therefore abridge any right of the suretj, who might either have paid the debt himself, or required Steele to bring suit for its recovery.

It is urged that the verbal agreement created a moral obligation, which will support the written contract afterwards made. A moral obligation to do an act, may support an express promise to perform it, as a promise to pay a debt barred by the statute of limitations, or created during infancy. In these and other cases of imperfect moral obligation, which might be supposed, the party is in morals, and conscience, bound to do the act, although bylaw he cannot be enforced to do it. Nothing of that kind exists here. A mere naked promise, though, it may create an honorary, does not constitute a moral obligation, in the proper legal sense of that term, though in ethicks a man may be said to be morally bound, to perform every, promise he voluntarily makes. The common law takes no cognizance of such promises, and their being in writing adds nothing to their validity.

There is not a little of refinement and subtlety, in this doctrine of the discharge of sureties by contracts between the creditor and principal debtoi’, to which they have not in form assented, but which in reality are for their benefit. A modem English Chancellor has declared, that “ it was a refinement of the Court of Chancery, and he would not refine upon it,” and although we must enforce the -law upon this subject as we find it, we certainly shall not extend its boundaries, or sü'etch its limits, beyond its present dimensions.

In our opinion the law was correctly expounded' by the Circuit Court, and its judgment must be affirmed.