Ray v. Summerlin

GARDNER, J. Suit on a promissory note by appellant against appellee. The litigated issue of fact was presented by the averments of the seventh plea which interposed the defense that defendant was, with knowledge of plaintiff, only a surety on the note 'sued upon, and that plaintiff, without the knowledge or consent of the defendant, had agreed, with the principal, for a valuable consideration, paid before the maturity of the note, for an extension of time of payment. Scott v. Scruggs, 95 Ala. 383, 11 South. 215; Mobile & M. Ry. Co. v. Brewer, 76 Ala. 135. It is insisted the proof was insufficient for submission to' the consideration of the jury the material averments of the plea, and that the affirmative charge, as well as others which would lead to a like' result, should have been given. Clearly the evidence was sufficient for the jury’s consideration that the defendant was, with knowledge of plaintiff, only surety on the note. The time as to the agreement was alleged under a videlicet, and it was not necessary that it be proven exactly as alleged. Alexander v. W. O. W., 161 Ala. 561, 49 South. 883. A partial payment made before maturity of the debt is sufficient consideration for the extension thereof, and, if made without the assent of the surety, he will be discharged. Scott v. Scruggs, supra. Whether, therefore, the payment was to be in payment of unaccrued interest, or considered merely, as advanced partial payment, was imma *335 terial, as either would constitute a valuable consideration sufficient to support an extension of the debt. A material variance between the allegations and the proof is not shown. Prestwood v. McGowan, 148 Ala. 475, 41 South. 779; A. C. L. R. Co. v. Dahlberg Brokerage Co., 170 Ala. 617, 54 South. 168. The affirmative charge as to plea 7 was properly refused. The remaining question as to the action of the court in overruling the motion for a new trial is not free from difficulty. The issues of fact presented in this cause have been submitted to two separate juries with a like result upon each trial. We have carefully considered the evidence, but to discuss it would serve no useful purpose. Suffice it to say we have reached the conclusion that the action of the trial judge in denying the motion should not be here disturbed. Finding no reversible error in the record, the judgment will be accordingly affirmed. Affirmed. ANDERSON, C. J., and SAYRE and MILLER, JJ., concur.