Moore v. Redding

Cooper, J., delivered the opinion of the court. There can be no controversy about the law of this case. Moore signed the note sued on as surety for R. G. Hudson, now a non-resident of this state, and the fact' of his surety-ship was known to Mrs. Powell, the payee of the note. Appellee, the present owner of the note, received it as a gift from Mrs. Powell long after the transactions which are relied upon by Moore as discharging him from liability. It is not suggested that he knew of or consented to the supposed contract for extension between his principal and Mrs. Powell. It is the well-settled law in this state and elsewhere that the mere passive conduct of the creditor in failing to pursue the principal debtor, or a mere agreement not to do so, does not release the surety. It is equally well settled that if the creditor, without the consent of the surety, enters into a contract with the principal, by which the right of action is suspended for a-specific time, the surety is released. A contract, of course, implies a consideration, and the agreement of the parties upon the same. The authorities cited and re [847] lied on by counsel for appellant and appellees group themselves around this central question, and illustrate particular circumstances under which, in the various states of case, extensions have been held to have been , or not to have been under and by virtue of contracts. Whether there is a contract or not, is a question of fact for the decision of the jury. Its effect, if proved, is for announcement by the court. The decisive inquiry in this case was, whether Mrs. Powell agreed that Hudson should retain the money for another year on interest and Hudson agreed so to do. The right to use the money for a year would be a sufficient consideration to uphold Hudson’s promise to pay interest, and his promise to pay interest during that time a sufficient consideration to support Mrs. Powell’s promise to extend the payment of the principal sum. It is wholly immaterial what rate -of interest is agreed on by the parties. It may be the same, or a greater or less rate than that stipulated for by the original contract. The right to have the use of money for a defined time, and the right to have interest at any agreed rate, for any defined time, are alike deemed valuable in law, and reciprocal promises — one by the creditor, to permit the money to remain on interest, and the other by the debtor to retain it on interest— mutually support each the other. Brown v. Prophit, 53 Miss., 649. Whether Mrs. Powell and Mr. Hudson entered into such contract was a question of fact which, under the evidence, should have been submitted to the jury. Judgment reversed, and cause remanded.