Henderson's Administrator v. Ardery's Administrators , 36 Pa. 449 ( 1860 )

The opinion of the court was delivered by

Woodward, J.

That a creditor having a principal debtor and a surety, discharges the surety by entering into an agreement with the principal, which can be enforced at law or in equity, whereby he extends the time of payment for any definite period beyond that mentioned in the original contract, is proved, abundantly, by our authorities: 2 Watts 45; 3 Penn. R. 439; 2 Barr 286; 2 Jones 383; 2 Casey 140. Nor is it contradicted in this case.

But the question here is, whether there was any such extension of credit. Henderson held the note of George Glenn, dated 5th March 1852, drawn at one year for $250, with James Ardery as Glenn’s surety. On the 18th May 1852, Glenn and Henderson entered into a written contract, whereby Glenn agreed to sell to Henderson certain real estate, and to pay all the debts of the firm of Henderson & Glenn, “ within one year from the date of this agreement.” In consideration whereof, Henderson, on his part, agreed, among other things, to receipt for and release to the said Glenn all the judgments, bonds, notes, book-accounts, or claims of any nature whatsoever he now has against the said George Glenn, “ as soon as the said Glenn shall pay the debts of the firm of Henderson Glenn aforesaid,” and convey the real estate aforesaid. The note in suit is admitted to be one of the notes referred to in this agreement.

Now, suppose when the note fell due on the 5th March 1853, Henderson bad sued Glenn upon it, could Glenn have set up this contract in defeat of the action ? Could he have said, you gave me until the 18th of May 1853, to perform certain conditions that were to be payment of that note, and until that date arrives your remedies on the note are suspended by a contract founded in a valuable consideration, and by which you are legally restrained ?

After mature reflection, it seems to us, that Glenn could have made such a defence; that Henderson had disabled himself from suing Glenn between the 5th of March and the 18th May 1853. And as the contract out of which the disability grew, was made without Ardery’s knowledge or assent, he must be held discharged from his suretyship.

It is true, that the year stipulated for had reference to those portions of the contract which Glenn was to perform, hut Henderson was to wait for Glenn’s performance, else the agreement loses its mutuality and all its efiicacy. If I agree with a debtor that his note shall he given up, if he build me a house within a year, do I not thereby stipulate, that I will not proceed to collect his note within the year ? Can it be said, that my legal remedies are as available after such an agreement as before ?

This is supposing a contract with a single'consideration. The debtor’s failure to perform altogether might release me and leave me free to sue the note. But in the contract before us, several things were stipulated for on both sides, and there are several considerations for Henderson’s promise, so that if, in the ease supposed, the creditor would not be holden, there was enough to bind Henderson in this case; especially, as we are not informed that Grienn neglected all his undertakings. Henderson, probably, looked for advantages from the whole bargain sufficient to compensate him for the release of Ardery, and therefore submitted to a restraint of his remedies on the contract in suit, for the two months and more.

The judgment is affirmed.