President of the Agricultural Bank v. Bishop

72 Mass. 317

Opinion

Merrick, J.

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There is no doubt, that if the holder of a promissory note, by any contract which can be enforced at law or in equity, extends the time of payment beyond the day fixed by the note, without the consent of the surety, the latter is thereby discharged from all further liability upon it, Greely v. Dow, 2 Met. 176. But no such contract is disclosed by the facts to which the parties in this case have agreed. The understanding, which is said to have existed between the plaintiffs and the principal debtor before this note was made, very evidently constituted no part of the written contract. Stackpole v. Arnold, 11 Mass. 27. Central Bank v. Willard, 17 Pick. 150. The only circumstance relied upon to prove an agreement by the plaintiffs to extend the time of payment beyond the maturity of the note is the reception by them of interest for a fixed period in advance upon certain unpaid portions of the note. But this is not sufficient. In the case of Oxford Bank v. Lewis, 8 Pick. 458, and again in Blackstone Bank v. Hill, 10 Pick. 129, this point was directly determined. In both of them it was held, that the’ mere reception of interest in advance did not tie the hands of the creditor or prevent him from bringing an action upon the note at any time when he might think it to be necessary or for his interest to do so. Judgment for the plaintiff.

Dewet, J. did not sit in this case.