Schroyer v. Thompson

Citations

• 262 Pa. 282
• 105 A. 274
• 2 A.L.R. 1567
• 1918 Pa. LEXIS 640

Syllabus

<p>Principal and surety — Promissory notes — Alleged alteration of contract by principals — Forbearance to sue — Consideration—Discharge of surety — Affidavit of defense — Averments.</p> <p>1. A surety has a right to require strict performance of the contract and an agreement between the principals varying its terms in a material part without the consent of the surety will release him from liability.</p> <p>2. An agreement between a principal debtor and creditor, to have the effect of altering a written contract so as to discharge a surety, must be based upon a sufficient consideration; that is, it must be a valid and enforceable contract.</p> <p>3. While forbearance to sue has always been recognized as an adequate consideration for a promise made in reliance thereon, there must be an agreement to that effect; mere forbearsmce without an agreement has been held not a good consideration because of there being nothing to prevent the bringing of a suit at any time.</p> <p>4. A memorandum endorsed on the back of a promissory note by the principal debtor subsequent to its execution and without the consent of the sureties thereon, providing “all overdue int. to bear int. to be compounded semiannually” will not discharge the surety if it was made without consideration.</p> <p>5. In an action against the sureties on promissory notes the affidavit of defense alleged that defendants had been discharged by reason of an endorsement on the back of the note to the effect that interest should be compounded semiannually, which endorsement was made by the principal without defendants’ consent, and, in consequence of which, the creditor had forborne to collect the interest for more than four years. It was not alleged that the forbearance of the plaintiff to collect the interest was in pursuance of an agreement between him and the principal that the interest should be compounded semiannually. Held, the affidavit of defense was insufficient.</p>