Barnard v. Reynolds , 49 Ill. App. 596 ( 1893 )

Opinion of the Court,

Harker, P. T.

It appears from the record in this case that on the 15th of November, 1884, A. H. Marsh borrowed from L. E. Barnard $600, for which he gave a note payable in one year witli interest at the rate of eight per cent per annum, payable semiannually, with W. H. Reynolds as surety. When the note became due Barnard extended the time of payment for six months, Marsh agreeing to retain the money and pay interest at the rate specified in the note. Like extensions were subsequently made every six months with the consent of Reynolds until Hovember, 1886, after which extensions were made without Ms knowledge. The last extension was made on the 23d of May, 1888, which, we think, although there was some conflict in the evidence, was made upon the agreement of Marsh that he would retain the money six months longer and pay the interest for that time. Suit was brought on the note one year afterward. Reynolds plead specially ^he extension of payment without his consent and consequent release from liability.

The case has been here before and is reported in 36 Appellate Court Reports, 219. The legal features of the controversy were there discussed, and we refer to the opinion therein filed as containing the law of the case.

After the case was remanded, on a trial in the Circuit Court the jury returned special findings and a general verdict in favor of Reynolds, and a verdict against Marsh fixing the damages at $782. The Circuit Court overruled a motion for a new trial and entered judgment for costs in favor of Eeynolds and against Marsh for $728.

¥e must hold against the plaintiff in error on the two points made by him which relate to Eeynolds: (1) that the verdict is against the evidence; (2) that the extension as claimed did not release the surety. The evidence in the record satisfies us that there was an agreement made in May, 1888, that Barnard should extend payment six months and that in consideration thereof Marsh would retain the money, for that, time and pay interest at the rate specified in the note.

There is no pretense that Eeynolds consented to or knew anything of that agreement. That such extension would have the effect to release Eeynolds was held by us in Reynolds v. Barnard, 36 Ill. App. 219, and by our Supreme Court in Crossman v. Wohlleben, 90 Ill. 537, and in Dodgson v. Henderson, 113 Ill. 361.

It is also assigned for error that the Circuit Court rendered judgment against Marsh for only $728 when the verdict was for $782. Eeynolds is in no wise concerned with that part of the judgment. Ho service'of the writ of error has ever been had upon Marsh nor has he entered his appearance without jurisdiction of his person; we shall not undertake to correct the judgment or make any order affecting his right.

The judgment so far as it appertains to Eeynolds will be affirmed.