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Wagner v. Wagner (Sup.) 109 N. E. 47. Rehearing denied. Waters v. Delagrange (App.) 105 N. E. 792, 1044. Rehearing denied. Transferred to Supreme Court, 109 N. E. 758. Waters v. Indianapolis Traction & Terminal Co. (Sup.) 113 N. E. 289. Rehearing denied. Watson v. Armstrong (Sup.) 102 N. E. 273. Rehearing pending. Watts v. Chicago & E. I. R. Co. (App.) 104 N. E. 42. Rehearing denied. Transfer to Supreme Court denied.

Westphal v. Williams (App.) 107 N. E. 91. Rehearing denied. Transferred to Supreme Court. White v. Woods (App.) 106 N. E. 536. Rehearing denied. Trans

ferred to Supreme Court, 109 N. E. 761. Williams v. Osborne (Sup.) 104 N. E. 27. Rehearing pending. Williams v. Wood (App.) 107 N. E. 683. Rehearing denied. TransWillis v. Ferguson (App.) 111 N. fer to Supreme Court denied. E. 810. Rehearing denied. Transfer to Supreme Court denied.

Wilson v. Tevis (Sup.) 111 N. E. 181. Rehearing denied. Wilt v. Bueter (Sup.) 111 N. E. 926. Rehearing pending. Wise v. Cleveland, C., C. & St. L. R. Co. (App.) 103 N. E. 866. Rehearing denied. Transferred to Supreme Court, 108 N. E.

369. Rehearing denied. W. McMillen & Son v. Hall (App.) 109 N. E. 424. Rehearing denied. Worth v. Wheatley (Sup.) 108 N. E. 958. Rehearing denied.

Y

Yetter v. Yetter (Sup.) 110 N. E. 195. Rehearing denied.

Young v. Merle & Heaney Mfg. Co. (Sup.) 110 N. E. 669. Rehearing denied.

Young v. Wiley (App.) 102 N. E. 54. Rehearing denied. Transferred to Supreme Court, 107 N. E. 278. Rehearing denied.

THE

NORTHEASTERN REPORTER

VOLUME 113

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6. PRINCIPAL AND SURETY 161 DISCHARGE OF SURETY-NEW PROMISE AFTER RELEASE-EVIDENCE.

Evidence of statements by a surety requesting further time for consultation with his prindo all possible to arrange matters, held insufficipal and cosureties, and expressing his desire to cient to show a new promise by surety after discharge by extension of time having been granted the principal debtor.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 85, 439-441; Dec. Dig. 161.]

Appeal from Circuit Court, Kosciusko County; Francis E. Bowser, Judge.

2. PRINCIPAL AND SURETY 105(4) RE- Action by James R. Matchett against the LEASE OF SURETY-PAYMENT OF INTEREST IN Winona Assembly and Summer School AsADVANCE. Payment of interest in advance on a past-sociation and John F. Beyer and others as due note operates to extend the time of payment sureties. From a judgment for plaintiff of the principal to the date to which interest is against the defendant first named, and in paid, and releases the sureties so that no agree- favor of the sureties and against the plainment for such release need be alleged or proved because implied from the mere payment in ad- tiff, plaintiff appeals. Affirmed.

vance.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 186, 190, 199; Dec. Dig. 105(4).]

3. PRINCIPAL AND SURETY 105(4) RE

H. W. Graham, of Warsaw, Anthony Deahl, of Goshen, and L. W. Royse, of Warsaw, for appellant. Widaman & Widaman, of Warsaw, and McNagny & McNagny, of Columbia City, for appellees.

LEASE OF SURETY-PAYMENT OF INTEREST. Where, on December 31, 1909, a creditor accepted payment of interest on an overdue note in excess of the amount due, and indorsed on the note interest paid to December 5, 1910, payment of the original debt was thereby extended and the sureties released.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 186, 190, 199; Dec. Dig. 105(4).]

4. PRINCIPAL AND SURETY 59-DISCHARGE OF SURETY-RULE OF STRICTISSIMA JURIS. The rule of strictissima juris applied to contracts of surety in favor of volunteer individual sureties, but not in favor of corporate surety companies, should be applied for the benefit of stockholders of a corporation not conducted for profit, although the rule might not apply in the case of corporations conducted for profit.

[Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 103, 1032; Dec. Dig. & 59.]

5. PRINCIPAL AND SURETY 130 DISCHARGE OF SURETY NEW PROMISE AFTER RELEASE.

LAIRY, J. The judgment from which this appeal is taken was based upon a promissory note executed by appellees and payable to appellant. The trial court rendered judgment in favor of appellant for the sum of $12,592 as against the Winona Assembly and Summer School Association and against appellant and in favor of appellees John F. Beyer, Christian C. Beyer, and J. Edward Beyer for costs. Upon proper request the court found the facts specially and pronounced its conclusions of law thereon. The questions here presented arise upon the exceptions to the conclusions of law.

As shown by the findings of fact the note in suit was executed on the 6th day of November, 1908, by the Winona Assembly and the Summer School Association as principal, and the other three appellees as sureties, and that appellant knew at the time the note was executed that the three last-named appellees were sureties for the principal maker of the note. The note was for the [Ed. Note.-For other cases, see Principal and principal sum of $9,000, due 60 days after Surety, Cent. Dig. §§ 373-376; Dec. Dig. date, with interest after maturity at the 130.1 rate of 8 per cent. per annum. The interest

If, after a surety is discharged by an extension of time for the payment of a note, he, with knowledge of the facts, although without new consideration, acknowledges liability, he is liable therefor.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

to maturity was paid in advance and by the terms of the note it fell due on the 5th day of January, 1909. The note was not paid at maturity, and interest was paid from time to time by the principal maker. The first three payments aggregating $360 paid the interest to July 5, 1909, but by none of these payments was the interest paid in advance of the time it was fully earned. After the payment which discharged the interest to July 5, 1909, no further payment was made until January 1, 1910, on which date the principal maker paid to appellant by check $360 as interest on the note in suit for six months to January 5, 1910, and the following indorsement was made on the back of the note: "Interest 12/31 paid on this note to Jan.

tion of appellant that, in order to constitute such an agreement, both parties must have understood that, in consideration of the payment of interest in advance, the time for the payment of the principal debt was extended until the date to which interest was paid, and that their minds must have met and agreed upon that proposition. It is further asserted that the fact of such agreement is the ultimate fact to be found, and that the failure to find such ultimate fact is fatal. Appellant claims that the finding to the effect that interest was paid in advance from the 1st of January, 1910, to the 5th of that month is an evidentiary fact from which the ultimate fact of an agreement to extend the time for the payment of the principal debt

5th, 1910, $360." The court's finding No. 6 | until the latter date might be inferred, but is as follows:

"That at neither of the times when said payments were so made on said note was there any request made by the said principal on said note for any extension of the time of its payments, nor were either of said payments made under any agreement and understanding by and between the plaintiff and said principal, that in consideration thereof the time for the payment of said note should be extended, except such agreement as would be implied therefrom, and that each and all of said payments were made without anything said by said principal or said plaintiff about the extension of the time of the payment of said note."

The court further finds that all of such payments were made and indorsed on the note without the knowledge of the sureties.

As a matter of law the court concluded that appellant was entitled to recover on the note as against the principal maker, but that he was not entitled to recover as against the sureties, and that they were entitled to recover their costs.

[1] It appears from the special finding that the payment of $360 as interest on the 1st day of January, 1910, paid the interest on the principal until January 5, 1910, which was four days at least in advance of such payment. There is no controversy as to the law governing the case, if, in connection with the other facts shown in the special finding, it is also found as a fact that there was an agreement between appellant and the principal debtor extending the time for the payment of the note. All parties concede that the law applicable to the facts shown by the special finding released the sureties if it is properly found as a fact that the time of payment was extended by agreement between the creditor and the principal debtor. Such is undoubtedly the law. Williams v. Scott, 83 Ind. 405; Post, Adm'r, v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677. Appellant asserts that the finding does not show that there was any agreement between him and the principal debtor to extend the time for the payment of the note to January 5, 1910, at the time interest was paid to that date on the first day of that month, and that finding No. 6 shows that there was no express agreement to that effect. It is the posi

that it does not amount to a finding of such ultimate fact. Decisions in some other states may be found to sustain appellant's position. Haydenville Sav. Bank v. Parsons, 138 Mass. 53; Nat. Bank of Springfield v. Love, 62 Mo. App. 378; Vilas v. Jones, 10 Paige (N. Y.) 76; Williams v. Smith, 48 Me. 135.

[2] The rule adopted in this state, however, does not sustain the position of appellant, and does not accord with that announced in the decisions cited in its support. On the contrary this court has held that the payment of interest in advance has the legal effect of extending the time for the payment of the principal debt to the date to which the interest is paid, and that such agreement need not be alleged or proved for the reason that it is implied as a matter of law from the mere payment of the interest in advance. Hamilton v. Winterrowd, 43 Ind. 393; Starret v. Burkhalter, 86 Ind. 439.

In the case of Hamilton v. Winterrowd, supra, the court said:

"There is, to be sure, no allegation of an agreement to forbear for three months and a half, but the facts are stated from which the presumption of such an agreement arises. The doctrine of implied agreement rests on presumption. “Implied contracts," says Blackstone (vol. 2, p. 443) "are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform.”, 1 Pars. Con. (5th Ed.) p. 4. Presumptions of law, however, need not be stated in pleading. 2 G. & H. 111. state facts from which the law implies an agreement, without in terms averring the agreement."

It follows that under our Code it is sufficient to

In each of the cases cited the question arose in the determination of the sufficiency of an averment of an answer, but the reason for the rule as stated by the court applies with equal force where the sufficiency of a special finding of fact is in question. In other cases this court approved the same proposition of law embodied in instructions. Woodburn v. Carter, 50 Ind. 376; Jarvis v. Hyatt, 43 Ind. 163.

[3] It may be that interest paid in advance by reason of a mutual mistake of the parties or on account of a miscalculation of the amount due as interest would not have the legal effect of extending the time for the pay

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