Stowell v. Goodenow & Rounds , 31 Me. 538 ( 1850 )

Shepley, G. J.

The question presented for the determination of the jury was, whether a contract had been made between the plaintiff and Goodenow for delay of payment for a stipulated time and for a valuable consideration. That question is not presented for the consideration of the court by this bill of exceptions.

The first cause of complaint presented is, that testimony was received to prove, that Goodenow was reputed to be solvent during the years 1844 and 1845, and that he afterward became insolvent.

Such testimony could not affect the rights of the parties, and its admission might have afforded just cause of complaint, if its influence had not been prevented by the instructions. Rut the jury were instructed, “that delay of payment and intervening insolvency of the principal and his removal to parts unknown, could not discharge the surety.” Under such instructions the testimony became immaterial, and it cannot be presumed, that the jury disregarded these instructions and allowed it to have an influence upon their minds.

Positions, for which the plaintiff’s counsel contended, not presented as requests for instructions, can only be noticed as explanatory of the instructions, which were given. They do not present matter of exception, if they were not directly noticed by the court.

It is insisted, that the ruling of the court was erroneous, that a contract, which would have the effect to discharge a surety if made with the principal before the note became payable, would have the same effect if made after the note became payable. This was correct. Hutchinson v. Moody, 18 Maine, 393; Gifford v. Allen, 3 Metc. 255. The remarks made in the case of Leavitt v. Savage, 16 Maine, 72, and referred to in argument, were made with reference to a bond, to show, that its condition was defeated by such a contract for delay.

The jury were instructed, “ that if the defendant, Rounds, had proved, that the plaintiff had made such an agreement to wait further time for a good consideration with Goodenow, then the burden of proof was on the plaintiff to show, that the surety had knowledge of or consented to such agreement, and if he failed to do so, the surety would be discharged.”

The wrong and injury to the surety consists in a change of the contract and of the relations between the creditor and his principal debtor. It is this, which discharges the surety. When proof of it has been made, the creditor can be relieved from the effect of it upon his rights only by showing, that the surety has assented or waived all objection to it. The surety could not ordinarily be able to prove, that he did not assent to it, when made without his knowledge. The proof should come from the party, who would be relieved from the consequences of his own wrongful act; and the instructions were correct.

The other instructions are not the subject of complaint.

Exceptions overruled.