Payne v. Powell

14 Tex. 600

• Court: Texas Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Wheeler, J.

The agreement, set up in the answer, as an agreement to give further time to the principal debtor, whereby the sureties are discharged from their liability, being an agreement to pay, for the use of money loaned, a larger premium,-or rate of interest, than is allowed by law, was usurious and void. (Hart. Dig. Art. 1609; 1 Wend. R. 555; 6 Id. 415.)

It is well settled, that the. mere giving of time to the principal debtor, without a binding agreement to that effect, will not discharge the surety. (Burke v. Cruger, 8 Tex. R. 66; Cruger v. Burke, 11 Id. 694.) And it seems equally well settled, that an executory contract, or promise to pay usurious, interest, not being obligatory on the principal, and the agreement to give time, consequently, being without consideration and void, such an agreement will not discharge the surety. (7 B. Monroe, 218; 6 Id. 287; 3 Id. 262; 1 Id. 322, 325.) We are of opinion, therefore, that the Court did not err in sustaining exceptions to the plea setting up this defence. The judgment is affirmed.

Judgment affirmed.