HEFFORD ET AL. vs. MORTON ET AL., 11 La. 115

Carleton, J., delivered the opinion of the court.

The defendants being sued as the endorsers of a promissory note, pleaded that an agreement had been entered into between the plaintiffs and maker of the note sued on, by which an indulgence of two years rvas extended to the máker, who accepted the same, and the defendants consequently discharged. hoiderfo!apro! yússory note signed an agreement with other ^ote^of the note, 4‘granting him an extension of two years for their’re^ectWe S|s no ev¿ dence of his ae-terms, the en-^“'dheharged!01' The agreement is in the following words: “ we, the undersigned, creditors of Henry L.

Webb, do hereby agree and bind ourselves to grant an extension of two years for the payment of our respective claims against Mm, provided he gives us within three months from the date hereof his obligation for the same, bearing interest at the rate of six per cent, per annum. New-Orleans, January 13, 1836.” Then follows the signatures of the creditors, among whom are those of both plaintiffs and defendants. The cause was tried by the court, and judgment having been rendered for the plaintiffs, the defendants appealed.

The defendants having based their defence upon the acceptance by the maker of the note, of the respite accorded by this agreement, the judgment of the Parish Court turned mainly upon this point, and we think the reasoning of the court is correct. Had the maker of the note been a party to the contract, or had accepted it within a reasonable time, there can be . 1 J no question that the defendants would have been put in duriore casu, and discharged by the indulgence extended to the maker.

Defendants’ counsel argued with much ingenuity, to show that the maker’s acceptance is to be presumed, as the agreement was intended for his advantage; that it was advan - tageous to him, does not, however, so clearly appear; for by the terms of the instrument, the maker was bound to pay six per cent, interest for the indulgence; whereas, he paid only five on protested notes, and none on open accounts, if any existed.

He also contends that the acceptance of the debtor is to be presumed from the absence of the original agreement, a copy onty, having been produced at the trial; that the original must therefore have been in his keeping, and hence, his acceptance is to be inferred. But this by no means follows, for the original may have been in the possession of some of the creditors, for whose advantage the stipulated interest was intended. Be this, however, as it may, the contract was bilateral ar,¿ defendants rightly conceived that it was necessary to allege and prove its acceptance by the maker of the note.

This we conceive they have wholly failed to do. We are of opinion there is no error in the decree of the court below. It is, therefore, ordered, adjudged and decreed, that the judgment of the Parish Court be affirmed, with costs.