Civil action, tried before Connor, Judge, at Fail Term, 1885, of Pitt Superior Court. There was a verdict and judgment in favor of the defendant Whitehead, from which the plaintiff appealed.
Cited by 2 later decisions — most recently November 1900
2 state decisions
Key passage — most relied on by later courts
“The exoneration of the surety is the same when the contract of forbearance is usurious in terms, and especially when the consideration has been (216) paid;”
¶2
2 Exception. The effect of a contract for forbearance to sue for a fixed and limited period, founded on a sufficient consideration, with the principal, -without reserving the right to proceed against the surety, and made without his assent, is too well settled to need further discussion. The exoneration of the surety is the same when the contract of forbearance is usurious in terms, and especially when the consideration has been paid. We are content to cite some of our own adjudications.
Scott
v.
Harriss,
76 N. C., 205;
Bank
v.
Lineberger,
83 N. C., 454, modified in
Carter
v.
Duncan,
84 N. C., 679; and to refer to some recent text hooks — Brant on Suretyships, §304 and following; Baylies on Sureties, page 251,
et seq
¶3
3. Exception. We think there was no evidence of any trick or fraud practiced in bringing about the arrangement for indulging the debt. The transaction was entirely free from the imputation of unfairness, upon the defendant’s testimony, nor does the plaintiff’s statement vary its aspect in this respect.
¶4
Inasmuch as no indulgence was in fact given, as suit was brought on the very day when the money was paid, in disregard of the contract, it occurred to us that it was thus virtually annulled, and no disability imposed upon the surety to his disadvantage. But the authorities are to the contrary, and it is held that the exoneration grows out of the agreement to forbear, and is not affected by the creditor’s breach of it after it was made.
¶5
We find no error in the record, and the judgment must, be affirmed.
