Armstead v. Thomas , 9 Ala. 586 ( 1846 )

GOLDTHWAITE, J.

The general rule is, that a surety will be discharged if the creditor stipulates in a binding manner, upon a sufficient consideration, with the principal debt- or, to give day of payment, without the consent of the surety. [1 Story’s Eq. § 326.] It will readily be perceived, the evidence in this case does not bring it within the rule, because there is no pretence to say that any engagement was entered into to give the principal debtor further day. The agreement was that the surety should not be sued until a particular period, or rather, that if suit against him was delayed until that period, the principal debtor was to be accountable for all costs and lawyer’s fees. Conceding this to be a binding agreement upon the principal debtor, it cannot be said that the surety’s rights were impaired. It cannot be pretended, the surety might not have paid the debt, without losing his remedy against his principal; or that the creditor at the instance of the surety, might not be compelled to sue. It is then nothing more than a stipulation by the creditor, at the instance of the principal, that the surety shall not be proceeded against until after the lapse of a certain time. [See Wilson v. Bank of Orleans, at this term.] In our judgment such a contract, whether with or without consideration, does not avoid the contract of the surety.

2. What has been said is sufficient to show, the charge requested was properly refused, but it is further insisted, that the one actually given is erroneous. It may be so under particular circumstances, but certainly was not so in connection with the evidence before the jury. The court, as we have shown, might have instructed, that the facts in evidence were no defence, but instead of this, submit the cause to the jury upon the question whether the surety has sustained injury. This was more favorable than was allowable, but the error is against the plaintiff, instead of the defendant.

3. The objection to the portion of the deposition which was allowed to go to the jury, is not sustainable. The defendant had proved that the note was left with this witness as a friend to receive payment, and thongh this circumstance was quite immaterial, yet there certainly was no error in showing what instructions were given to the party when the note was left with him.

We can perceive no error in the record. Judgment affirmed.