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: 101
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1875.] CLAIBORNE v. BIRGE. 101
Opinion of the court.
How., Miss., 691; 21 Ohio, 93; 7 Hill, N. Y., 250; 30
Miss., 424; Roberts v. Stewart, 31 Miss., 664; Bailey v.
Mills, 27 Tex., 434.
Elperrson & Maxey, for appellee, cited Warrington v.
Early, 22 Eng. Law & Eq., 208; Pidcock v. Bishop, 3
Bar. & Cress., 605.; 10 Eng. Com. Law., 278.
Moo;Pz, ASSOCIATE JUSTICE.-The court instructed the
jury that any agreement between Claiborne, the assignee
of the notes, and Urquhart, the principal debtor, subsequent
to their execution, for the payment of a higher rate
Df interest than that expressed in the notes, "was such an
alteration of the original contract as discharges the surety;"
and refused to further instruct them, as requested by the
plaintiff, that such agreement, unless based on-a valid consideration,
would not have this effect. It is not pretended
that there was any change or alteration of the notes themselves,
so that they do not now import the contract originally
stipulated and shown by them. But the court evidently
supposed the agreement of Urquhart to pay a higher
rate of interest, notwithstanding the testimony submitted
to the jury tending to prove that there was no consideration
to support it, was obligatory and binding upon the
parties to it, and that it either discharged and extinguished
the contracts evidenced by the notes, or, by substituting a
new contract for the old ones in some way, curtailed the
rights or increased the hazards and liabilities of the surety.
Admitting that the agreement of Urquhart to pay additional
interest imports a sufficient consideration to support
it in the absence of rebutting evidence, (Pas. Dig., art.
9087,) the inference of consideration imported by the instrument,
however, is of fact and not of law. Hence it
may be rebutted by satisfactory evidence for this purpose.
And if it is shown that in truth the agreement was without
consideration, it is unnecessary to say that it is entirely
nugatory, and can in no way and of itself bind the parties
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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/m1/109/: accessed June 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .