Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 100
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100 CLAIBORNE v. BIRGE. [Tyler Term,
Argument for the appellant.
On cross-examination, however, Urquhart stated that,
while he understood that he was to have indulgence on the
notes, plaintiff did not make any positive agreement to give
any specific time, or any agreement not to sue upon the
Plaintiff, in reply, testified that he made no agreement
with Urquhart to give any extension of time; that the
only consideration for Urquhart's agreement to pay increased
interest was what appears on its face.
Cotton, subscribing witness, could remember nothing
additional to the face of the paper; was not certain that
there was no extension.
The court instructed the jury:
"If you believe from the testimony that the plaintiff and
ITrquhart made and entered into an agreement whereby
Urquhart promised to pay and Claiborne to receive a different
rate of interest on the three notes than that expressed
on their face, it was such an alteration of the original contract
as discharged the surety; and if such agreement was
made without the consent of defendant, Birge, he is discharged
from all liability on the notes, and you will so
find; or if, for a valuable consideration, Claiborne extended
the time for the payment of the notes for any definite and
certain period, and that the surety, Birge, did not consent
to the extension of time, he is discharged, and you will so
The plaintiff asked the court to charge the jury "that
such subsequent agreement must be based on a sufficient
The verdict discharged Birge. Plaintiff's motion for
new trial was overruled, and he appealed.
Mason & Caampbell, for appellant, cited Jones v. Holliday,
11 Tex., 412; IHunter v. Clark, 28 Tex., 159; Payne v.
Powell, 14 Tex., 600; McLemore v. Powell, 11 Wheat.,
556; Burke v. Cruger, 8 Tex., 66; Newell v. Hamer, 4
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/108/: accessed December 11, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .