Allgaier v. Scott

Opinion of the Court by Judge Hardin: In this action the appellants were sued as the co-obligors of J. T. Daviess on a promissory note, executed to the appellee as guardian to Ella P. Offutt, for $281.92, and in their defense they claimed exoneration on the ground that the plaintiff had, after the maturity of the note, without their consent, stipulated with their said co-obligor, for whom they were sureties in the debt, to give indulgence thereon for a specific time, in consideration of the payment of usurious interest. The court rendered a judgment for the plaintiff, and the sureties have brought the case to this court. It appears that shortly after the maturity of the note the appellee required payment of Daviess, who begged for further indulgence, and was thereupon told by the appellee that he could not [269] afford to wait on him for legal interest, and that if he did wait, he must have ten per cent, which Daviess offered to pay, and asked indulgence for one year upon his agreement to pay that rate of interest. But although it appears that suit was not brought for over one year, and that interest was paid on the note up to January 1, 1865, at some rate, not definitely proved, but exceeding six per cent., it does not appear that the appellee agreed to suspend his right of action for one year, or to forbear to sue on the note for any specific time. Neither does it appear that the interest, legal or usurious, was paid in advance; and as the appellee did not put himself under any legal obligation to extend the time of payment — though the hope of receiving interest at a usurious rate may have induced his delay, it seems to us, according to the case of Robinson, etc., v. Miller, 2 Bush, 179, and other decisions of this court on the same subject, that the appellants were not released, and it was properly so adjudged by the circuit court. Polk, for appellants. Prewitt, for appellees. Wherefore, the judgment is affirmed.