Beadles v. Bless.

This was all the evidence offered in the case by either party. The defendant then moved the court to exclude from the jury all the evidence offered and admitted on the part of the plaintiff, on the grounds, that it showed no right of recovery whatever; that it showed the instrument offered was without consideration; and that it showed that the transaction, in consideration of which and out of which the contract sprung and was created, was a bet, and against public policy, and hence no recovery should be allowed in the case. But the court overruled the motion, and refused to exclude the said evidence; to which the defendant excepted. The defendant brings the case to this court by writ of error. The jury rendered a verdict of $122, against the defendant. JUDD, BOYD & JAMES, for Plaintiff in Error.

S. P. SHOPE, for Defendant in Error.

CATON, C. J. This action was on the following agreement:

"On the second day of June, A. D. 1856, I promise to pay to John Bless or order, one hundred dollars, for value received, provided the Peoria and Hannibal Railroad shall not be completed between Farmington and Lewistown, Fulton Co., Ill., by the 1st day of June, 1856, so far as the tieing and laying of the rails of said road are concerned. Lewistown, July 13, 1855. N. BEADLES."

This, in form at least, is simply a contract for the payment of money, dependent on a future contingency. And in that aspect is quite unexceptionable. The testimony, however, gives the transaction something of the character of a wager, and shows that a similar agreement was given by the payee to the maker of this agreement, payable upon the opposite contingency. But if viewed in the light of a wager, as we understand the common law, the plaintiff has a right to recover upon it. It is not prohibited by our statute; it has no immoral, indecent, illegal or pernicious tendency. Such wagers are recoverable at the common law, although the parties have no interest in the event upon which the wager depends. No doubt many excellent jurists have regretted that such idle agreements should be recognized in, and enforced by the courts, yet such is the law, and it is not for us to reform it. But in this case, surely, we cannot safely affirm that these parties had no interest in the event, upon which the promise to pay depended. The plaintiff may have had a legitimate and proper interest in having the road completed, within the time specified in the agreement, and desired to stimulate the defendant to

Flynn, Ex'r, etc., v. Mudd & Hughes et al.

secure its completion, or failing in that, to indemnify himself
to the extent of the one hundred dollars. Or the defendant
might have had an equal interest in not having it completed
in that time. The one may believe, that public policy and the
public good required that the whole community should exert
itself to complete the road; while the other might have enter-
tained the opinion, that such a course would be detrimental to
himself and the public. It is not for us to say which may
have been right in their opinions. At all events, we cannot
say that the wager, if it was one, was illegal or immoral; and
as a simple question of law, we must hold it valid. Nor do
we think the court erred in ruling out the evidence offered.
What matter, if people did talk about the wager, or if it influ-
enced some to subscribe to the railroad stock, and prevented
others from subscribing. We cannot say that one or the other
was the wisest course, or that there was anything immoral or
illegal for either or both parties to exert their influence one
way or the other on the subject.
The judgment must be affirmed.

Judgment affirmed.

THOMAS H. FLYNN, Executor, etc., of Thomas Morgan, Plaintiff in Error, v. MUDD & HUGHES, and FRANCIS KEYS, Defendants in Error.

ERROR TO SCOTT.

An agreement, between the holder of a note and the principal, to extend the time of payment for a definite period which is founded upon a good consideration, will discharge the surety; unless the surety consents to the agreement at the time, or subsequently ratifies it.

To enable a surety to interpose the defense to a note that further time has been given to his principal, it is not necessary that his name should appear upon the note as surety; it will be sufficient if he was actually a surety, and this was known to the payee when the note was executed.

The payment of interest upon a note in advance, is a sufficient consideration to support an agreement for an extension of time to the principal, so as to discharge the surety.

Where the plaintiff introduces in evidence a note which has indorsed upon it, an agreement extending the time for payment, he will be bound by the agreement although it is not signed by him.

THIS was an action of assumpsit, brought by Thomas Morgan, plaintiff, in the Circuit Court of Scott county, at the December special term, 1858, on a promissory note, dated St. Louis, April 28, 1857, for $18,000-made by the defendants,

Flynn, Ex'r, etc., v. Mudd & Hughes et al.

payable to the order of one Wm. T. Hazzard, in four months after date, and by him assigned to said plaintiff. Process served on Francis Keys only, and by consent tried before WOODSON, Judge, without a jury. Judgment rendered against said plaintiff in the court below for costs. A writ of error is now brought by Thomas H. Flynn, executor of the last will and testament of said Thomas Morgan, since deceased, to this

court.

The declaration contains three special counts-for the note, interest and damages on protest, and the usual money counts.

The defendant Keys, besides the plea of non-assumpsit, filed two special pleas, in substance the same, in which he alleges, that he was simply security of Mudd & Hughes on said note, which the said plaintiff knew at the time he took the note; and that after plaintiff received said note, and before its maturity, to wit, on the 6th day of August, 1857, at St. Louis, Mo., said plaintiff agreed with said firm of Mudd & Hughes, that if they would pay him in advance the interest on said note up to the 28th day of March, 1858, he would extend the time for the payment of said note to said 28th March, 1858; and in pursuance of said agreement, the said firm of Mudd & Hughes did pay, on the 6th day of August, 1857, the plaintiff, in advance, the interest on the amount of said note up to the 28th March, 1858, to wit, the sum of $840; and in consideration thereof, the said plaintiff promised and agreed with the said firm to extend the time of payment of said note to the said 28th day of March, 1858. The said pleas then allege, that said Keys was in no way a party to said agreement, and it was made without his knowledge or

consent.

To which special pleas the plaintiff filed a general demurrer, which the court overruled.

Whereupon the plaintiff, by leave of court, filed three replications, traversing the special pleas, and alleging that Keys was a principal on the note, and a joint payor of the same. The following is the evidence adduced on the trial of said cause in the court below.

On behalf of the plaintiff, the note sued upon, to wit:

"$18,000.

ST. LOUIS, April 27th, 1857.

"Four months after date, we promise to pay to the order of William T. Hazzard, eighteen thousand dollars, for value received, negotiable and payable without defalcation or discount, at the Bank of the State of Missouri, with six per cent. interest for forfeiture from date, if not paid at maturity.

MUDD & HUGHES.
FRANCIS KEYS."

Flynn, Ex'r, etc., v. Mudd & Hughes et al.

Assignment on said note:

WM. T. HAZZARD."

"Pay Thomas Morgan, or order. On behalf of the defendant, and excepted to by plaintiff in court below, Adams, witness, testified, that in the month of June, 1858, when and where the plaintiff, Fråncis Keys, and witness were present, in a conversation then and there between the plaintiff, Keys and witness, the said defendant stated that Francis Keys was security on the note sued upon. in this case, and that plaintiff knew that fact at the time Keys signed it; that the said defendant, Keys, said that the note was signed by him after Mudd & Hughes had got the money for which the note was given, before he (Keys) signed the note, which plaintiff admitted; that the said Keys also stated, in the same conversation, in the presence of Morgan, that Mr. Grubb, one of the firm of Mudd & Hughes, requested him (Keys) to sign the note as security; and that at the same time Morgan had the note of Mudd & Hughes in his possession, and that afterwards, he (Keys) signed said note. That plaintiff, Morgan, stated in the same conversation, that he had extended the time of payment, and that Keys stated at the same time that he considered himself released from said note, because Morgan had extended the time of payment; and Morgan also stated, that he held Keys still bound to pay said note, and considered him as one of the principals on said note; and Morgan also further stated, that he would not have let Mudd & Hughes have the money for which the note was given without Keys signing said note. The witness also stated, that Morgan did not say that he received any consideration from Mudd & Hughes for extending the time of payment of said note.

Memorandum on the back of note sued upon, adduced in evidence by defendant, and excepted to by plaintiff in court below:

"Received of Mudd & Hughes payment in full for the interest on the within note to the 28th day of March next, at which time this note is to be due and payable; if not paid at that date, to draw interest according to the face and tenor of said note.

"ST. LOUIS, August 6th, 1857."

Which was all the evidence in the case. Whereupon the court below rendered judgment against said plaintiff, and in favor of said Keys, for costs.

J. H. BERRY, and I. L. MORRISON, for Plaintiff in Error.

M. HAY, and N. M. KNAPP, for Defendants in Error.

Flynn, Ex'r, etc., v. Mudd & Hughes et al.

WALKER, J. The doctrine, that giving further time to the principal debtor, by a valid agreement, without the assent of the surety, releases him from the contract, seems to be universally admitted and acted upon. Yet a diversity in the practice, as to the mode in which the surety may avail himself of the defense, exists in different courts. In some it is held, that the remedy is alone in chancery, unless it appears upon the face of the instrument, that he bears that relation to the contract, whilst in others it is held, that the fact that he is a surety may be averred and proved, although he appears as a principal.

In Great Britain the former rule appears to prevail, but on this side of the Atlantic, every defense which discharges the surety in equity, has generally been recognized as admissible in courts of law. There are, however, some of our courts that follow the English practice, although compared with the others, they are few in number. To render such a defense available, it is necessary that the contract extending the time for payment, should be such as would prevent the creditor from maintaining an action, on the original agreement, before the expiration of the extended time. To have that effect, it must be based upon a sufficient consideration, and must be for a definite period. Gardner v. Watson, 13 Ill. 347. But possessing these requisites, it must also have been entered into, between the principal debtor and the creditor, without the consent of the surety, or his subsequent ratification, to constitute a valid defense. And this defense is based on the principle, that the surety can only be held to perform the precise terms of his contract. He cannot be charged by the acts of others, beyond the terms of his agreement.

When he has agreed, that his principal shall pay money, or perform any other act, by a specified day, the change of time to a different day, is not the agreement into which he entered, and to enforce its performance, would be to permit other and unauthorized persons to make for him a contract. The principle is universally recognized, that any unauthorized alteration of an agreement, will release all parties, not assenting to or ratifying the change. And the surety must undeniably have the same right to interpose the same defense, when the terms of the agreement into which he has entered have been changed by other parties.

Again, any alteration, by which the rights of a surety are impaired, or the possibility of his resorting to them is delayed, places him in a different situation from that which he originally occupied. It might also impose upon him the whole burthen of the obligation, and deprive him of resorting to