Howard v. Clark

Cole, J. — The rule of law is too well settled to require citation of authorities to support it, that if a creditor make a valid and binding agreement to give further time to his principal debtor, he thereby discharges the surety. The appellant’s counsel does not seriously controvert this rule, but seeks to avoid its application or force in this case, by the claim that since Jordan’s assent to the addition of the defendant’s name to the note as surety, or othei’wise, does not appear, such addition was a material alteration of the note which would discharge the maker, Jordan ; citing 2. Pars. on Notes and Bills, 556, and Hall’s Admx. v. McHenry, 19 Iowa, 521. If this claim be conceded as a sound rule of law, it would not necessarily change the conclusion in this case; for, the rule does not make an altered instrument absolutely void, but only avoids it at the election and claim of such other maker. It does not lie in the mouth of the holder to declare the note void as to such maker. The principal maker in this ease does not make any claim that the note as to him is avoided by the addition of the name of Clark; besides, his agreement to pay at the extended time might possibly preclude such defense even as to him. And, again, it appears from the evidence and also from the findings of fact that the defendant put his name 116 to the note as swrety only, and this was known to plaintiff at the time he acquired the note. Any construction of that contract, whereby his liability is enlarged or changed from that of surety, would work a fraud upon him. Under our statute respecting guarantors (Rev., §§ 1800.1801) the defendant would not be bound as a guarantor of the note, since no notice of non-payment by the maker is shown, and actual detriment to the defendant is proved, by the plaintiff refusing to take the money offered in payment at its maturity, and extending the time as appears from the evidence and findings of fact. Affirmed.