Smarr v. Schnitter

Eagg, Judge, delivered the opinion of the court. The b.ill of exceptions shows that several points were raised upon the trial of this cause in the court below, but the one which seems to be relied upon chiefly in the brief of the counsel for the appellant is the fact that the court erred both in the giving and refusing of instructions. To understand the force of what is urged as the ground for reversing the judgment in this case, it is only necessary to state in general terms the matter in controversy between the parties to the suit. It was an action upon a promissory note executed by the respondents together with one McMaster. There was judgment by default against Schnitter, no appearance being entered for him; but his co-defendant Stevens filed his answer admitting the execution of the note, but setting up as matter of defence that in the transaction he only sustained the relation of surety to Schnitter; that the appellant, without-his knowledge or consent, had made a valid agreement with his co-defendant by which the time of payment of the note sued upon was extended, and as a consideration therefor a deed of trust upon certain real estate was executed by Schnitter and wife, and accepted by the appellant. As preliminary to the consideration of the principal question involved, it is sufficient to remark in general terms, that a contract between the holder and principal.of a note, whereby the time of payment is extended, operates as a release of the surety whenever it can be shown that such a contract is based upon a good and valid consideration. This point is so well settled now that it need not be supported by argu [482] ment nor by the citation of authorities. JSow it is contended here that this question was not fairly presented, to the jury. The appellant claims that the legal effect and operation of the deed ought to have been declared by the court, and that the sixth instruction, which was refused, would have placed that matter properly before die jury. It reads as follows: “ 6. That the deed of trust by its terms did not give any further credit to said Schnitter in said note, nor did . it extinguish or suspend the right of Mrs. Smarr, the plaintiff, to sue said principal; nor did it operate to release said Stevens, his security.” There can scarcely be any question after looking at the deed itself, and. the evidence, in the cause, about the impropriety of giving such an instruction. It gave an improper construction to-the deed, and thereupon declared that the right of plaintiff to sue the principal was neither extinguished nor suspended, and that the security was not released. It is shown by the evidence that the deed mentioned in this instruction was given by Schnitter and wife to the appellant on the 30th day of August, 1862, to secure the payment of the promissory note referred to, bearing date July 12,1856, and payable twelve months after date ; — that the parties last named, together with Robards the trustee, were the only persons privy to the transaction; that the deed contained a covenant between the parties thereto, that it should not “in any way conflict with a judgment sought to be had on said note in the Hannibal Probate Court against the estate of J. K. K. McMaster, except that no sale shall be forced on said estate and judgment until after the expiration of eighteen months from the date of this deed.” It was further stipulated in the deed, that if the parties to the note should within the time limited in the deed,i. e. within the eighteen months, pay off the whole amount of the debt, it was to be null and void; otherwise to remain in full force. It is very clear that this was an extension of the time of payment, and although it was not so stated in direct terms in the instruction given at the instance of the respondent Stevens, yet that [483] seems to have been assumed as the correct interpretation of the deed, and the law was correctly declared. The other judges concurring, the judgment of the court below will be affirmed.