Elyton Co. v. Hood , 121 Ala. 373 ( 1898 )

TYSON, J.

— It is conceded by counsel for appellant that the defendant Avas a surety for Abernathy after the acceptance by the plaintiff of his promise to pay the four promissory notes held by it, executed by the defendant, aggregating the sum of $2,800, each for $700, dated November 30, 1886, and due respectively one, tAvo, three and four years after date, with interest, for the purchase of certain lots sold by plaintiff to defendant. The mortgage executed by Abernathy and the deed from plaintiff to him and the agreement executed by plaintiff and Abernathy extending the time of payment of the debt assumed by him, with defendent, of date. March 4th, 1889, are practically the same in substance and legal effect as those construed by this court in Hodges v. Blyton Land Co., 109 Ala. 617. The distinctive difference between the facts of that case and this one, grows out of the fact that the notes executed by Abernathy to the plaintiff for the indebtedness assumed by him purport on their face to have been executed nearly five months prior (to-wit October 12, 1888) to the agreement between the plaintiff and Abernathy providing for the extensión of time to Abernathy and the preservation of the rights of the defendant as surety. If the fact is established by the evidence that the plaintiff accepted the notes óf date October 12, 1888, on that day, without the consent of the defendant, this Avas an alteration of the terms of the defendant’s contract as surety and discharges him from all liability. And this is true, notwithstanding there may have been no agreement between plaintiff and Abernathy, other than the implied one which arises out of the making of the notes by Abernathy payable to the plaintiff at á different time fixed in defendant’s notes assumed by Abernathy. The contention of appellant’s counsel is, that as the only evidence offered in the cause in support of the averment of the plea that on the 12th day of October, 1888, the plaintiff for a valuable consideration agreed with Abernathy to extend the time within which to pay the notes of the defendant assumed by him and did on that date accept the two .notes, describing them, was the notes by Abernathy to plaintiff dated October 12, 1888, for $218.14, payable April 12, 1889, and one for $3,000 of the same date and payable in twelve installments every six months, beginning April 12, 1891, and running to Oct. 12, 1896, coupons for the semi-annual interest due upon the note, and the bond for title from plaintiff to defendant and the assignment, that this was not sufficient to establish the fact of an agreement to extend the time in which the notes executed by the defendant were to be paid. The whole theory of this insistence is based upon the fact that the $218.14 note due April 12, 1889, and a portion of the installments as provided in the $3,000 note did not extend beyond the day fixed in the note of the defendant, the foundation of this suit, for its maturity. The fallacy of this theory can be shown by a resort to the evidence, independent of its unsoundness as a matter of law.

On the 12th day of October, 1888, Abernathy, the principal, owed to the plaintiff three notes of $700 each, with interest from November 30, 1886, due respectively November 30,1888, Nov. 30, 1889, and Nov. 30, 1890, and a past dne note of $700, with interest, due Nov. 30, 1887, for the payment of all of which the defendant was his surety. The notes given by him, not only extended the indebtedness evidenced by the past due note, but extended the entire principal of the debt beyond the maturity of the last note of the defendant, to-wit, April 12, 1891. So we have not only a change in the terms of the defendant’s contract as to the date of payment, but we have an extension of the time to Abernathy, beyond the date of the maturity as to the principal of the debt, of all the notes. We have no doubt this was sufficient, if the notes were delivered by Abernathy to plaintiff, to prove the allegations of the fourth plea. The taking of them by the plaintiff suspended the right of action on the debt until their maturity, although there may have been no express agreement to that effect, and the defendant, as surety on the original debt, was thereby released, unless he consented to the arrangement.—Mobile Life Ins. Co. v. Randall, 71 Ala. 220; Mobile & Montgomery Railway Co. v. Brewer, 76 Ala. 135; Haden v. Brown, 18 Ala. 641; 2 Brandt on Suretyship, § § 343, 360.

As said in Mobile Life Ins. Co. v. Randall, supra, “When a note or bill is thus taken in consideration of a pre-existing debt, there may be no express agreement that indulgence shall be given on the original debt until the maturity of the note or bill; nor an express agreement that indulgence or forbearance is the consideration; the parties-must be presumed to intend the legal consequences of their acts, and as the legal consequences are the tying up the hands of the creditor during the period, the right of action on the original debt is-suspended, securing indulgence to the debtor for that period, the transaction has the legal effect it would have, if, in express terms, it had been stipulated such effect would result. The creditor suffers the detriment, the debtor obtains the benefit, which would be suffered or derived, if in words, the legal consequences of the transaction had been expressed as matter of agreement.”

Were the notes of Abernathy delivered to the plaintiff on the day of their date? The presumption is, that they were, and their date as shown by the face of the notes is pruna, facie evidence of the true date of their making and delivery.—Alridge v. The Branch Bank of Decatur, 17 Ala. 45; Burns & Co. v. Moore & McGhee, 76 Ala. 339.

The introduction of these notes in connection with the bond for title and assignment thereof by defendant to Abernathy proved the facts alleged in his fourth plea and shifted the burden of proof upon the plaintiff to prove the facts alleged in his special replication thereto. In this replication, it is alleged that the notes of Abernathy of date October 12, 1888, were executed contemporaneously with the agreement of March 4, 1889, preserving the rights of the defendant as surety. The only evidence relied upon in support of this replication, it not being disputed that the defendant knew nothing of the execution of the notes, is the recitals found in this agreement, the mortgage of Abernathy to secure his notes, and the deed from plaintiff to him to the land. There is nothing in either of these instruments which tends in .the remotest degree to contradict the date of the notes as it appears on them. On the contrary in each of them, Avherever reference is made to the notes, the words “has executed” áre invariably used; and we may add the conclusion is inevitable from the evidence, that the agreement was an after-thought,.and not in the contemplation of the parties on the day the notes were executed. Besides, the dates fixed for the maturity o.f the installments, being respectively April 12th and October 12th, are to our minds conclusive of their delivery on the date they bore date.

The defendant was discharged from liability when the agreement of March 4 was made, and therefore he cannot possibly be affected by any of its terms.

What we have said renders it unnecessary to review the rulings of the court upon the pleadings.

The judgment of the court must be affirmed.

Affirmed.