Philadelphia v. Howell

Citations

• 19 Pa. Super. 76
• 1902 Pa. Super. LEXIS 36

Syllabus

<p>Principal and surety — Extension of time — Acceptance of note.</p> <p>In an action against a surety on a bond where the defendant testifies that plaintiff accepted from the principal debtor a note in full settlement of the debt, and the plaintiff denies the statement, and testifies that the note had been received through the mail, and that there had been no agreement or understanding that it should be received in payment of the original claim, the case is for the jury, and a verdict and judgment for the plaintiff will be'sustained.</p> <p>Where a creditor takes from his debtor a note payable at a future day on account of his claim, the law raises no implication that he agrees to give time until the maturity of the note for the payment of the original debt; but an agreement must be proved as a fact dependent upon the understanding of the parties at the time when the new security was given and received.</p> <p>In an action upon a bond, defendant testified that the plaintiff had accepted a note in payment of the original claim, and had never afterwards asked him to pay the account. He also testified that he did not know that the plaintiff was claiming anything from him until he was informed that his surety had been sued. Held, that it was proper for the court to permit the plaintiff, in rebuttal, and to contradict defendant, to offer the record of a proceeding in the court of common pleas which established that the witness had, during the period to wmcfi his testimony related, been actually served with a writ of summons, and that he had permitted judgment to be entered against him for the full amount of the claim upon the original contract.</p>