Philadelphia v. Howell

Opinion by W. D. Porter, J., The defendants did not, in the court below, deny that they had been liable to plaintiff, but asserted that the original liability had been extinguished by the acceptance of a new obligation. Howell was the principal and the National Surety Com pany was surely in a bond, under the condition of which they had become liable to the plaintiff. The plaintiff accepted from Howell, the principal debtor, upon account of the claim, a note made by Zane payable to the order of Howell and by him indorsed, due sixty days after date. Howell testified that the plaintiff had “ agreed to take the note in full settlement of that account.” The plaintiff categorically denied this statement, and said that the note had been received through the mail and that there had been no agreement or understanding that it should be received in payment of the original claim. This question of. fact was submitted by the learned judge of the court below to the jury, with instructions which were clear and adequate, and the jury having found in favor of the plaintiff, we must accept the question as determined adversely to the contention of the defendants : Holmes v. Briggs, 131 Pa. 233 ; Shepherd v. Busch, 154 Pa. 149; Collins v. Busch, 191 Pa. 549; Philadelphia v. Stewart, 195 Pa. 309. The defendants offered no testimony of any express agreement between the parties for an extension of time of payment of the original indebtedness, but the learned court also submitted the question of such extension to the jury, with instructions possibly more favorable to the defendant than the evidence warranted, saying : “ I may say further that if you find in the evidence anything which leads you to believe that the plaintiff here agreed to wait any time, to give to the defendant Howell any time [80] upon the reception of the note, if he in any way tied his hands by receiving that note so that he could not, under the principles which I have stated to you, proceed at once, if he had chosen, upon his original claim against Howell, in that case the surety would be relieved.” This question was determined by the jury in favor of the plaintiff. The appellants now contend that the mere acceptance of the note, without further evidence of an agreement, raised the legal inference that the plaintiff was not to sue Howell upon the original indebtedness until the note fell due, and that the surety was thereby discharged. Where a creditor takes from his debtor a note payable at a future day on account of his claim, the law raises no implication that he agrees to give time, until the maturity of the note, for the payment of the original debt; but the agreement must be proved as a fact, dependent upon the understanding of the parties at the time when the new security was given and received. The court could not say that the acceptance of the note amounted to an agreement to give time for the payment of the original debt. In the absence of any evidence as to an agreement upon the subject the presumption is that the new security is taken as collateral to the old, and the rights of the creditor upon the original obligation remain unchanged: Shaw v. First Associated Reformed Presbyterian Church, 39 Pa. 226; Buck v. Wilson, 113 Pa. 423. The first six specifications of error are dismissed. Howell, having testified that the plaintiff had agreed to accept the note of Zane in payment of the original claim, went further and said that the plaintiff never afterwards asked him to pay the account. “ After he received that note he never bothered me again for that account. Q. When did you first hear that he claimed anything at all of you ? A. Mr. Taylor or Mr. Smith, of the National Surety Company, wrote me a letter and informed me of the fact that he had sued the National Surety Company for the amount.” The witness, it is true, became very much confused in his cross-examination, but his admissions did not go to the full extent of conceding that the direct and absolute assertions made upon his examination in chief were untrue. We are of opinion that it was proper for the court to permit the plaintiff, in rebuttal, to offer the record of a proceeding in the court of common pleas, which established [81] that the witness had, during the period to which his testimony related, been actually served with a writ of summons and that he had permitted judgment to be entered against him for the full amount of the claim upon the original contract. The seventh and eighth assignments of error are without merit. The judgment is affirmed.