Barnett v. Wing

¶1(concurring.) The referee-finds that the testator or Ed— . win B. Nash verbally requested plaintiff to indorse an accommodation note-of Melvin A. Nash, in order to have it discounted at the bank, and promised him that if Melvin A. failed to pay he would pay, and would hold plaintiff harmless: that, relying upon that promise, plaintiff, on the 16th of May, 1888, indorsed a note to Melvin A. for $1,500; that this note was not paid, but was-renewed several times in the same form. On the trial the plaintiff called. Melvin A. as a witness, and then executed and delivered to him a general release, which specially released Melvin A. from any liability on account of paying the note or the existing renewal thereof. Without discussing the validity of the indemnity, I am of the opinion that Edwin B. was discharged--by the-renewals. If, as plaintiff claims, the testator’s liability became fixed when, the first note became payable, still the plaintiff extended the time by making a new note. After he had done this, if Edwin B.-had paid the plaintiff he could not have sued Melvin A. until the new note became payable. Melvin. A. bad then taken up the original note, and was no longer-liable thereon.. Edwin B, liad agreed to indemnify plaintiff for indorsing the first note, not-for indorsing numerous renewals thereof. He might be willing to take the-risk that Melvin A. would pay the first note, which came due August, 1888,. but not that be would pay, or would be liable to pay, a note which came due in March, 1890. Furthermore, I think that byreleasing, in open court, Melvin A. from all liability on the original note, and on. the existing renewals thereof, the plaintiff discharged the testator’s estate. Melvin A. was the principal debtor, and a release of the principal debtor is a discharge of the surety or guarantor. There was no longer anything to guaranty. This defense could not have been pleaded; the act took place on the trial. For these-reasons I concur in the result of my Brother Mayham’s opinion.