Chute v. Pattee , 37 Me. 102 ( 1854 )

Howard, J.

— It is agreed that the plaintiff may take judgment against Pattee, the principal defendant, for the amount of the note in suit, with interest and costs. But the other defendants, who are sureties upon the note, claim to have been discharged by the operation of an agreement made between the testator and the principal, without their assent. They, only, make defence.

It is proved, that after the note became payable, the testator agreed in writing with the principal, to extend the time of payment “ for one year more,” upon the agreement of the latter to pay interest upon this, and other notes, for that period; that the extension was made, and the interest paid at the expiration, according to the agreements; and there is no proof that either of the sureties assented to the arrangement.

The agreement of the principal to pay interest for a specified time, after the note became due, furnished a sufficient consideration for the promise to delay. Both agreements were valid, and binding upon the parties respectively, and enabled each to accomplish what he appears to have considered a desirable purpose; — a further investment for a definite period for the creditor, and an extension of credit for the same time for the debtor. The legal effect of the agreements was to disable the former from enforcing collection, and the latter from making payment of the note, until the expiration of the year stipulated; and to alter the contract, and change the responsibility of the sureties, without their consent. Rees v. Berrington, 2 Ves. 540; Bank of the United States v. Hatch, 6 Peters, 259; Gahn v. Niemcewiez, 11 Wend. 317; Leavitt v. Savage, 16 Maine, 72; Bailey v. Adams, 10 N. H. 335.

This case falls within -the familiar rule of law, that where the holder of a promissory note makes a-binding agreement with the principal to enlarge the time of payment beyond that fixed by the note, without the consent of the surety, the latter will be discharged. Lime Rock Bank v. Mallett, 34 Maine, 547; Greeley t. Dow, 2 Met. 176, and cases before cited.

According to the agreement of the parties, and under the provisions of the R. S., c. 115, § 11, the plaintiffs have leave to discontinue as to the sureties, on payment of costs, and to amend and take judgment against the principal for debt and costs.

Shepley, C. J., and Rice, Hathaway and" Cutting, J. J., concurred.