Branch Bank at Huntsville v. Robinson

ORMOND, J. Waiving for the present, the consideration of the question, whether the proposition of Kinkle, if acceded to by the bank, would have prevented the latter from pressing its execution against the former, before a breach of the agreement, we will proceed to the enquiry whether, under'the facts disclosed by [627] rthe record, there was a -valid agreement between the parties, by ■which the bank was bound to hold up the execution until the time for the delivery of the stock had arrived, and there was a failure to deliver it. The question of the effect of agreements entered into between the creditor and thé principal debtor to the prejudice-of a surety has been repeatedly considered by this court; and in a recent ■case, [Fletcher v. Gamble, 3 Ala. 335,] the doctrine was again examined at some length, and the authorities reviewed. It is there stated that the reason that giving day of payment operates to discharge the surety is, that the creditor has by his own act deprived himself of the power of doing that, which the surety has a right to call on him in a court of equity to do, to sue the principal; and has also deprived the surety of his right of paying the debt, and proceeding himself against the principal. The question then is, whether under the facts disclosed, the bank had deprived itself of the right of coercing payment from Kinkle, for a stipulated period. It appears from the proof, that the latter made-a proposition in writing to the former, to pay his debt in State stock, upon certain conditions; this proposition was not acceded to as made, but a modification was made in it by the bank, which, as modified, it offered to accept. It appears that Kinkle never notified the bank that he accepted the offer made by it, and it cannot require any argument to showthattho proposition of the bank was not bind ing on either until assented to by Kinkle. The latter states, that he agreed to it, but did not notify the bank of his assent. The assent to be binding on Kinkle, must have been such as the bank could have availed itself of and enforced. The mental acquiescence should have been manifested by some act susceptible of proof; otherwise, as it was not legally binding on Kinkle, it could not be enforced by the bank, and was therefore not legally binding on either. It is further argued, that the subsequent order made by the bank, enlarging the time within which it would receive the stock, is an admission'on the part of the bank, that the agreement was consummated. This order was made by. the bank on the 16th February, 1843. The period within which the bank, by its first proposition agreed to receive the stock, in payment of its debt, ^one hundred and twenty days) had expired on the 10th Februa [628] ry, and this was, in law, and in fact, a new offer made by the bank to receive stock in payment of the debt, and the previous proposition is referred to, as showing the conditions on which the offer is made. This proposition, like the former, does not appear to have been acceded to by Kinkle, and, for the reasons already given, was'not binding on either party. Some stress was laid in argument upon the phraseology of the last order made by the directors of the bank, in which the former proposition of the bank is called a “ contract.” It is very certain that the mere designation of the former proposition as a contract, does not make it one, and ahhough it might be conceded,'in the absence of proof to the contrary, that this was an admission that the first proposition had been assented to, so as to be binding on both parties, no such result can follow when the contrary is shown to be the fact. To hold otherwise, would be to make this order operate as an estoppel by which the bank was concluded from showing the truth. It was further contended that as several previous executions had issued, which the sheriff did not levy by the direction of the plaintiff, the sureties consenting thereto, that this execution, in reference to which no such direction had been given, had become dormant, and therefore void against junior judgment creditors, and purchasers. In the caso of Woods v. Gary, at the last term, the question of what facts would render an execution dormant and void, as to iunior judgment creditors, was considered.' We then held, that a direction by a plaintiff to. hold up and not to levy an execution, would render it dormant, and give a preference to the execution of ay unior judgment creditor subsequently issued; but that such delay, if not fraudulent in fact, would not impair the lien of the execution, when re-issued as against a junior judgment creditor, whose execution was not issued until after the return day of the execution of the elder judgment. There is no pretence here, that the delay which was assented to by all the parties, was fraudulent in point of fact, nor could it by possibility injure any one who had not then an execution against some of the defendants in the sheriff’s hands. The last execution c&me to the sheriff’s hands on the 5th September, 1842, and if no previous lien existed, one attached then in favor of the bank. This was five days before the deed of trust relied on was executed, and shows that the bank had the prior lien. [629] It might perhaps be questioned whether the sheriff could interpose such a-defence to excuse his neglect; but as that point is not necessary to the decision of the cause, we forbear any comment upon it. Let the judgment be reversed, and the cause remanded.