Theodore Frois v. Wm. H. Mayfield, 33 Tex. 801

Walker, J. This was an action commenced in the District. Court of Karnes county, on the sixteenth day of April, 1867, founded on a promissory note made by J. E, Robuek and W. H. Mayfield, payable to Theodore Frois & Co., or order, for the sum of fifteen hundred and thirty-nine dollars and seventy-nine cents. The note is dated New Orleans, August 29, 1860, and was payable at the office of Theodore Frois & Co., which appears to have been in the city of New Orleans.

The note was due six - months, after date, twenty-eighth of March, 1861., At the commencement'of the suit Robuek appears to have squandered his property and changed the place of his residence to parts unknown, but is supposed to live somewhere in the State of Mississippi. Mayfield is a resident citizen of Karnes county, was served with process and defended the action in the district court.

He filed a general demurrer, a general denial, and set up by way of special answer that he signed the note with Robuek as security only; that Robuek had fallen into bad habits; was gambling, drinking and squandering his property before the maturity of the note; that he notified the plaintiffs of these' facts and urged them to diligence in the collection of the note. He also, subsequently, pleaded the statute of limitations, but as it is not insisted that the action was barred it is unnecessary further to notice this defense.

The. plaintiff moved to strike out the special answer, contending that it was insufficient in law and presented no legal or equitable defense to the action. The defendant also claimed in his special answer that the plaintiffs neglected to Bring suit at the first term of the court after the maturity of the -note, and after they had been served with notice of Robuek’s failing circumstances. . The suit was not commenced at the first term of the court after the maturity of the note, nor at the second, upon a showing why the action was not commenced at the first term.

Article 4783, reads thus : “ Any person bound as surety upon any contract for the payment of money, or performance of any act, otherwise than by a bill of exchange or promissory note assignable or negotiable by law, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute a suit upon the contract.”

Article 4784, reads thus : •' “ If the creditor or obligee, not being under legal disability, shall fail to bring his suit to the first term of the court thereafter, or to the second term, showing good cause why he did not bring it to the first term, and prosecute the same to judgment and execution, the surety giving such notice shall he discharged from all liability thereon.” We think these two articles must he construed together, and we see that their provisions do not apply to bills of exchange or promissory notes.

In the case of Burke against Oruger, 8 Texas Reports, p. 66, two questions which -arise in this case are settled; the court say,whatever diversity of opinion there may have been upon the question whether a party, who has signed a joint and several bond or other specialty, with another, can, at law, and as against the obligee, aver and prove that he was but surety, when he appears upon the instrument as principal, that he may do so in equity is well settled; so here, he may do so for the purpose of availing himself of any equitable defense to which, as surety, he may be entitled.

The taking of merely collateral security as, for example, a mortgage, will not extinguish the original debt, nor suspend the remedy upon it; and the time when the new security beconfes due does not vary the effect and operation of it upon the old; .and, therefore, the taking of such a new security, without stipulating that it shall extinguish the original, or suspend the remedy upon it, will not release the surety.

It was competent then, for Mayfield to plead and prove that his undertaking upon the note sued on was that of a security merely; it was competent for him to introduce the witness Baldwin, to prove that he had notified the plaintiffs of Robuck’s circumstances; and the letter itself might have been produced and read in evidence to prove this notice. Much more was it competent for the witness Baldwin to refresh his memory of facts by reference to the letter. But what does the defendant in error gain by this evidence?

The notice to the plaintiff in error was given before the maturity of the note, and it does not appear from the evidence that the plaintiff in error could at any time have made his money from Robuck; but, on tbe contrary, tbe witnesses introduced by May-field himself render it very improbable by their statements that so large an amount of money could have been made out of Robuck at the time the note matured. The case of Cruger et al. against Burke el al., reported in 11 Texas, p. 694, is virtually the same case as that reported in 8 Texas between the same parties; the same doctrine is recognized in Payne v.

Powell, 14 Texas Reports, p. 60, and in Hunter against Clark, 28 Texas Reports, p. 162; and we again affirm in this case that the mere giving of time to the principal in a bill of exchange or promissory note, without a .binding agreement to that effect, which postpones the right of action or works some injury to the security, will not discharge him from his obligation.

We are therefore of opinion that the court erred in overruling the plaintiffs’ motion to strike out the special answer of the defendant, and in refusing to charge the jury as asked by the plaintiff, and in giving the charge as asked by the defendant. For the reasons stated, the judgment of the district court is reversed and the cause remanded to be proceeded in in accordance with this opinion. Reversed and remanded.