Frois v. Mayfield

Citations

• 33 Tex. 801

Syllabus

<p>1. A joint maker of a promissory note, being sued thereon, pleaded that he signed it only as surety for his. co-maker, and that this fact was known to the plaintiff at the time the note was executed to him; that before the note matured he, defendant, notified the plaintiff that the piincipal was squandering his property, and urged the plaintiff to take immediate steps to enforce or secure payment out of the principal’s property, which was then ample to pay all of his debts; but that the plaintiff had neglected to take such steps, and the principal debtor had squandered all his property. ReU, that these allegations present no defense to the action, and the plaintiff's motion to strike out the plea should have been sustained. (Burke v. Cruger, 8 Texas, 66; Cruger v. Burke, 11 Texas, 694; Payne v. Powell, 14 Texas, 600, and Hunter v. Clark, 28 Texas, 159, cited by the court.)</p> <p>2. Article 4784, Paschal’s Digest, requiring that a creditor, when notified by a surety to sue, must do so to the first term, or to .the second, showing cause, etc., must be construed in conjunction with Article 4783, from the operation of which promissory notes and bills of exchange are expressly excluded; and therefore Article 4784 can have no application to such notes and bills.</p> <p>3. This court re-affirms the principle that the giving of time by a creditor to a principal maker of a promissory note or bill of exchange, without a binding contract to that effect, does not release a joint maker who was only a surety.</p>