Neal v. . Freeman

Ruffin, J. -Several points- were argued at the- bar in this-case, but as- the record presents two only, we shall- confine our consideration to the my the first being the exception to-the refusal of the judge- to submit the issue proposed as to the diligence used by the plaintiffand the second, to the allowance of interest upon the claim of the plaintiff. As to the first: A creditor is not bound to a surety for active diligence against'the principal, for it is the contract of the surety that the principal shall pay the debt, *446 und it is his business therefore to see that he does;so. Consequently-, a forbearance to sue, even if accompanied with a failure to inform the surety of the principal’s want of punctuality, will not discharge the former. Pipkin v. Bond, 5 Ired. Eq., 91; Thornton v. Thornton. 63 N. C., 211; Deal v. Cochran, 66 N. C., 269. Eliminate from the case before us the single 'feature of the •delay on the part of the plaintiff to sue, and what else is there in the case that could possibly go to support the issue rejected by the court ? There was no release of any security; no change in the terms of their contract; no contract to forbear for a stipulated time; no tender of the amounts due and refusal; nothing in short which could imply bad faith on the part of the creditor, or a disregard, or even indifference to the rights ■and interests of the sureties. In the argument much stress was put upon the plaintiff’s failure to state the exact amount of their liability in the letter to the defendant Ledbetter. But it is perfectly manifest that this failure did not proceed from any fraudulent intent, and that it could not, and did not work any injury to any one; and as to the confidence in the principal, and in his doing what what was right, expressed in the letter, it was but an opinion (so intended and so understood) given to aid the surety in determining what was best for all parties to be done. So too with the treaty as to the horse. It was had with the full knowledge of the defendant, Flem-ming, and with his full concurrence as to every step taken in regard to it. And as to the other articles “ to be turned over” by the principal in discharge of his indebtedness, that was the result of an “arrangement,” not between him and the creditor, but between him and the sureties themselves, and_so deposed to by the defendant Flemming-. Due diligence was a question for the court, and seeing that the whole evidence taken together and supposing it all to be *447 true, did not establish a want of it in the plaintiff, bis Honor properly refused to submit the issue to the jury. In regard to the question of interest: We concur in the view taken by the defendants’ counsel, at least, so far as to say, that it was error to have charged the defendants with interest so early as the 10th of January, 1875, at which time it does not appear that the defendant Freeman had collected any part of the amount he failed to account for. Collecting the money as agent of the plaintiff, he was not chargeable with interest until default made in payment after demand. Hyman v. Gray, 4 Jones, 155. Whether the bringing the action was such a demand as to entitle the plaintiff to interest from that date, is a question we have not considered, as it was conceded, both in the court below, and in the argument in this court. As the sum allowed as interest was distinguished in the judgment rendered from the principal sum due, it is not necessary that we should direct a new trial, as the correction can be made here. Accordingly it is adjudged that the plaintiff recover of the defendants the sum of $372 as principal money, with interest thereon from the date of the summons, and that the clerk of this court make the correction in the judgment in conformity with this opinion. Thus modified the judgment of the court below is affirmed. Per Cubiam. Modified and affirmed.