Howard v. Fletcher , 59 N.H. 151 ( 1879 )

The note was joint and several (Humphreys v. Guillow, 13 N.H. 385; Ladd v. Baker, 26 N.H. 76), but it might be shown that the defendant was a surety only by the understanding of the parties when he signed it. Grafton Bank v. Kent, 4 N.H. 221; Whitehouse v. Hanson, 42 N.H. 9; Maynard v. Fellows, 43 N.H. 255. The payment of interest due on the note by the principal maker was not a good consideration for an agreement to extend the time of payment; and the agreement had no binding force, and did not have the effect to release the defendant. Joslyn v. Smith, 13 Vt. 353; Wheeler v. Washburn, 24 Vt. 293. By the law of Vermont relating to sureties (Gen. St. Vt., c. 66, s. 4), which governs this contract (Bliss v. Houghton,13 N.H. 126 — S.C., 16 N.H. 90; Low v. Railroad, 45 N.H. 370, 377; Harrison v. Edwards, 12 Vt. 648), no agreement between the creditor and principal debtor to extend the time of payment or performance of the contract has any binding effect, unless made in writing reciting the consideration, and signed by the creditor. The indorsement of interest on the note by the principal maker was not a writing reciting the consideration of any agreement, nor one signed by the creditor, and there was no competent evidence of any agreement to extend the time of payment which had the effect of discharging the surety. The defendant being absent from and residing out of this state, where the suit is brought, at the time the cause of action accrued and ever since, the action is not barred by the statute of limitations. Gen. St., c. 202, s. 8; G. L., c. 221, s. 8; Dudley v. Kimball, 17 N.H. 498, 500; Paine v. Drew, 44 N.H. 306, 310. The refusal of the plaintiff to collect the note of the principal maker at the request of the defendant was no defence, and the fact that the principal maker had property sufficient to pay the note was not competent evidence to support anything pleaded, and was properly excluded. Davis v. Huggins, 3 N.H. 231; Mahurin v. Pearson, 8 N.H. 539; Crane v. Stickles, 15 Vt. 252; Hickok v. Farm. Mech. Bank, 35 Vt. 476.

Judgment on the verdict.

CLARK, J., did not sit: the others concurred.