Kirchoff v. Voss

Citations

• 67 Tex. 320
• 3 S.W. 548
• 1887 Tex. LEXIS 875

Syllabus

<p>Release — Consideration — Contract. — The owner of several promissory notes, executed by four persons, who signed each of them as principals, and which were secured by lien on land, afterwards agreed with one of the debtors that, in consideration of one hundred dollars then paid, and in further consideration that if another note, then made by the debtor, for one hundred and fifteen dollars, bearing interest and payable before the lien notes matured, was paid, to release the one debtor from liability on the lien notes, and if the one hundred and fifteen dollars-more was paid, to release one hundred acres of the land from the lien. The note for one hundred and fifteen dollars was not paid when it ma- • tured, and an extension of time was refused. Held:</p> <p>(1) The payment made of one hundred dollars, and the making of the note for one hundred and fifteen dollars which matured before the lien notes became due, constituted a sufficient consideration to support the promise for the release of the lien.</p> <p>(2) Since the contract did not stipulate for the withdrawal of the promise to release the lien on non-payment of the note for one hundred and fifteen dollars, the right to withdraw the promise did not exist.</p> <p>(3) The contract for interest after the maturity of the note indicated that time was not of the essence of the contract. ‘ •</p> <p>(4) When it is intended to make time of the essence of a contract, apt and explicit words declaring that intention must be used.</p> <p>(5) The owner of the several notes, who thus stipulated for the release of one debtor, and who afterwards purchased the one hundred acres of land at foreclosure sale to satisfy his lien notes, acquired no advantage by his purchase.</p> <p>(6) The liability of the other principals in the note continued after the release of the one who thus contracted for his discharge.</p>