Foster v. Walker , 34 Miss. 365 ( 1857 )

Handy, J.,

delivered the opinion of the court.

The plaintiff in error, being surety upon a note made by one Moss to the intestate of the defendant in error, called upon the intestate and stated that he did not wish to be longer bound upon the note; and thereupon the intestate declared, in the presence of a person who was called as a witness to the declaration, that he would not hold the surety further bound, because the principal had a bill as a physician against him, and there was to be a settlement between them, and that he would not look further to the surety. This action was subsequently brought upon the note against the surety, who relied upon the agreement aboye stated as a discharge; but it was held insufficient by the court below, and the plaintiff recovered judgment upon the note, the court being of opinion that it was necessary for the plaintiff in error to show that the physician’s bill was extinguished by the consent of the principal, and that he agreed to discharge Walker thereupon, if Walker would release the surety on the note.

We do not consider this a correct view of the subject. The agreement b'etween Walker and the surety, was in effect an acknowledgment that Moss, the principal, had a claim against him which was sufficient to discharge the note. It is an acknowledgment of a set-off, which would operate in law as a payment of the note. In consideration of that, he agrees to discharge the surety, thereby plainly admitting that Moss had a valid claim against him sufficient to discharge the note. Prima facie this was an acknowledgment of payment; and in the absence of all proof or explanation, it was sufficient to bar a recovery against Foster, not on the ground of release, but because the agreement was an acknowledgment , of payment. If the claim of Moss was insufficient to satisfy the note, it was incumbent on the plaintiff below to show that fact, in which event he would have been entitled to recover for any balance due upon the note pver and above the amount of the account.

Judgment reversed and cause remanded.