Filley v. Scollard ( 1893 )

Ryan, C.

This action was brought in the district court of Dixon county by Patrick Scollard to recover the amount of a promissory note made to him January 31, 1888, by G. W. ■ Cassell and W. H. Eilley, due by its terms February 1, 1889, for $1,050. The defendant Cassell answered, admitting the execution of the note, but insisting that the time of payment thereof had been, upon sufficient consideration, extended one year from and after its maturity; and that the note was usurious. Upon this answer the court by its finding sustained the claim of usury. As to this finding no question is presented in this court. It will not therefore be further considered.

The defendant Eilley in his separate answer alleged that he was but a surety on said note, as was well known to plaintiff, and that upon a sufficient consideration, after the maturity of said note, paid by the principal maker thereof to the' payee, the payee had agreed to an extension of the time of payment for a year from the date of the maturity of said note as fixed by its terms, without theconsent or knowledge of said surety, whereby said surety was discharged from all liability thereon. Issue was duly joined upon the averments of the answers aforesaid, and upon a trial of said issues to the court a finding was made that no extension of time upon the note had been assented to, and judgment accordingly rendered against both defendants. This conclusion was reached upon conflicting evidence sufficient to sustain the finding of the trial court either way, and, as there is no other question than this presented by the record, the judgment is

Affirmed.

The other commissioners concur.