The American Decisions

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: a valid agreement, gave to the latter, without their asset t, an extension of time beyond that stipulated in their contract. The only question of difficulty in the case is, whether the evidence offered, if admitted, would have established an agreement to give time, obligatory upon the plaintiffs, and by...
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Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: a valid agreement, gave to the latter, without their asset t, an extension of time beyond that stipulated in their contract. The only question of difficulty in the case is, whether the evidence offered, if admitted, would have established an agreement to give time, obligatory upon the plaintiffs, and by which their right of action upon this contract was suspended. If so. and the defendants can prove that they were sureties, they were thereby discharged. But if there was not such au agreement, the mere giving of time would not operate to discharge the sureties. In /Jim? v. Baldinn, before cited, Chancellor Kent said: The established doctrine is, that mere delay in calling on the principal will not discharge the surety, provided that delay be unaccompanied with any settled or binding contract for that purpose. All the cases of relief of surety have gone upon the ground that time was given to the principal, by contract, without consent of the surety: Id. In Reynolds v. Ward, 5 Wend. 504, the court said: The principle to be extracted from the case is, that the creditor can not vary the terms of the contract so as to increase the risk of the surety without discharging him; but the terms are not varied by mere indulgence. To discharge the surety, it would seem to be necessary that there should be some agreement by which the plaintiff's right to prosecute and enforce the fulfillment of the contract is suspended. What is the giving of time within the meaning of the rule is thus explained by Chief Justice Gibbs in Orme v. Young, Holt N. P. 84, cited in Fulton v. Matthews, 15 Johns. 435, note a 8 Am. Dec. 261]. He said: What is forbearance and giving time? It is an engagement which ties the hands of the creditor. It is not negatively refraining, not exacting the money ...