Vaughan v. Vernon

100 S.W. 92, 82 Ark. 28, 1907 Ark. LEXIS 300

• Court: Supreme Court of Arkansas
• Decided: February 18, 1907
• Status: Published

Opinion

Riddick:, J.,

(after stating the facts.) The question in this case is whether the evidence shows that there was a valid agreement to extend the time for the payment of the note. If an agreement of that kind' was made without the consent of the surety, the plaintiff can not recover, for the defendant Vaughan was only a surety. But we do not think that the evidence shows any such agreement. The only witness who testified in reference thereto was the defendant Fitch, who borrowed the money. His evidence bearing on this point shows that he had the following conversation with Vernon at the time the note-was delivered: “I told Mr. Vernon that probably I would want him to carry me over another year. He said the interest was what he wanted, and he wanted that promptly by the time it matured. He also said that when I paid him he wanted it all paid at once. He gave me to understand that he would carry me over, and he did carry me for seven or eight years.” Fitch also testified that there was never anything further said between him and Vernon as to the extension of the time for the payment of the note; that he made the first payment of interest a few days before it was due, and did so to show Vernon that he would pay the interest as he had promised and to get an' extension, though he did not request an extension or refer to that matter. This evidence does not show any valid agreement on the part of Vernon to extend the time of the payment of the note. The only conversation between Vernon and Fitch in reference -to an extension of time was at the time the note was delivered. The presumption is that the note expressed the contract at that time as to the time when the note should be paid, and it can not be contradicted by evidence of parol contemporaneous agreements. Nor does this evidence show that there was any definite agreement to extend the time, or that there was any consideration to support such an agreement. The lender merely intimated that the only thing he was particular about was the prompt payment of the interest; that if it was paid, he would probably not press the payment of the principal. But this lacks a great deal of being a valid contract to alter the contract as expressed by the note.

A further question is raised as to the competency of the evidence of Fitch in reference to transactions between himself and the intestate. Defendant contends that, as Fitch made no defense and allowed judgment to go against him at law for want of an answer, thereafter he was no longer a party to the suit and could testify for the other defendant. But we need not discuss that question, for, assuming that his testimony was competent, it does not show anything- to release the security.

Judgment affirmed.