Ingels v. Sutliff

36 Kan. 444

Opinion

Opinion by

Simpson, C.:

The counsel for plaintiff in error rely on these two assignments for reversal:

1. The payment of $30 on the note on the 29th of January, 1882, and the promise of defendant in error, in consideration of that payment, to wait six months or one year, or as soon between six months and one year after that date as Ingels could pay the balance due on- the note.

2. The delay of the defendant in error to bring suit on said note when requested by Becker, the surety, to do so, who communicated to Sutliff the fact that Ingels was disposing of all his property.

As to the first proposition discussed in the brief of counsel for plaintiff in error, it has been decided by this court in the cases of Jenness v. Cutler, 12 Kas. 500, and Prather v. Gammon, 25 id. 379. The payment of $30 on this note on the 29th day of January, 1882, when the note had been due ever since the 4th day of August, 1881, and the sum paid was not half of the amount then due, was no consideration for a new and valid agreement.

The second question raised is covered by the case of Turner & Jelly v. Hale, 8 Kas. 38. Holding strictly to the rule in that case, this surety does not bring himself within it.

We recommend an affirmance of the judgment.

By the Court: It is so ordered. All the Justices concurring.