Wybrants v. Lutch

Bell, J. The statement of facts contains an admission, in [310] distinct terms, that William B. Pillow and James B. Barry, were securities on the promissory note, which is the foundation of the suit. It is also clearly shown, that the payees of the note, entered into a written agreement with one of the principal obligors upon the note, by which it was distinctly stipulated, that the time of payment of the note should be extended beyond the time specified, and additional security, in the shape of a deed of trust, was furnished to the payees of the note. The securities, Pillow and Barry, had no knowledge of this agreement for an extension of the time of payment, until after the agreement was consummated. The cause was continued at the Fall Term, 1857, of the District Court, in pursuance of the agreement entered into between the payees of the note and J. M. Lutch, one of the principal obligors. The continuance was entered on the minutes of the court, as a continuance by consent; but it is shown, that the consent was between the attorney of the payees, and the attorney of the principals upon the note, and that the securities, Pillow and Barry, were not parties to the consent. And it is not shown, that the securities ever ratified the agreement for the extension of the time of payment, or consented to remain bound, after that agreement was made. We are of opinion, that there is no error in the judgment of the court below. For the law of the case, it is only necessary to refer to the case of Burke and others v. Cruger and Moore, 8 Texas Rep. 66, where the subject is fully discussed. The judgment of the court below is affirmed. Judgment affirmed.