Henderson v. Marvin ( 1859 )

By the Court.*—Gould, J.

In this appeal from a judgment entered on the report of a referee, I do not perceive that there is any controversy about the facts. The defendant agreed to guarantee to plaintiffs and their assignees, the amount of their claims-against a third party for goods, that prior to January 1,1857,they might sell to such third party, on a credit of six months. The guaranty not to cover a sum greater than $500. Certain goods were sold, on the credit agreed, enough to bring the defendant’s liability up to his guaranty of $500. But (as the referee finds, and there is no dispute) after the original sales of these goods, and their delivery, the plaintiffs extended the term of credit on a part, and shortened the term of credit on a part, by taking the third party’s promissory notes therefor, having different periods of time to run. The referee found, as matter of law, that as to those goods for which the credit was extended, the surety was not liable, and did not include the amount of those in his report, and from that part of his decision there is no appeal. He, however, found that shortening the term of credit did not discharge the surety; and for the value of the goods, the credit for which had been shortened, he found for the plaintiffs; and the defendant appeals from that part of his report, and from the judgment entered thereon. And the single point submitted to us, is, the correctness or incorrectness of that conclusion of law on the part of the referee. It being true, as it is conceded, that an original sale, on any term of credit, other than one of six months, whether it varied from that term two days or two months, would not bind the surety. (6 Hill, 540; 2 Comst., 185.) I must confess, I do not see how it alters the law of the case, that the abridging of the term of credit was made after the sale. The main point, the actual shortening of the credit, was accomplished; and its effect on the term of credit was just the same as if the original credit had been given for the shorter period. The real credit was not for six months. In 6 Sill, 542, the phrase is, “ he must agree to wait, so that he cannot sue in the mean time.” And can he not “ sue in the mean time,” where having first agreed to wait the full term, he and his principal debtor afterwards (and before the expiring of that term) agreed that the term may be so shortened, that he can “sue in the mean time.” The second agreement, as to credit, abrogates the first; and, thenceforth, the credit is for the newly-agreed term, and on that, there can be no pretence that the surety is held.

In the case before us, not only could the creditor sue within the original time of the credit, but he actually did so. And it would seem a little difficult, after that, to hold the party who was surety for a credit of six months, and for no longer or shorter term. To hold any other rule, were to place the surety entirely at the mercy of the creditor, and a principal, who saw fit to help the creditor rather than his surety, if not at the mercy of the creditors alone; since the latter, by a variety of inducements (as to other sales), might overbear the wishes and intentions of the principal; and since, if the term of credit could be shortened at all, without releasing the surety, it would be immaterial how much it was shortened, or when the shortening process was effected. A party might one day sell on the stipulated credit of months, and the next day abridge the term to days. In short, there is no safety in attempting to vary the rule from its strictness. We must insist that, if a surety is to be held upon his contract, that contract (whatever may be done 'with any collateral matters, and many such are noted in the books) must remain unchanged, unless by his consent, and he must be held according to the tenor of that contract, or not at all.

The judgment should be reversed, and a new trial had.*

* Present, W. B. Wright, Gould, and Hogeboom, JJ,