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: 102
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102 CLAIBORNE V. BIRGOE [Tyler Term,
Opinion of the court.
to it, or change the stipulations of the original contract, or
affect the rights of the parties to them. It cannot be controverted
that there was testimony submitted to the jury
tending to prove that the agreement of Urquhart to pay a
higher rate of interest than expressed in the notes was
without consideration. It is therefore evident that the
court erred in refusing to give the instruction asked by
the plaintiff by way of qualification or explanatio.a of the
charge given in the first instance.
Sureties, beyond all question, can only be held liable to
the precise terms of their contract. The liability incurred
by them by their contract, and the rights resulting to
them from it, can neither be increased nor diminished by
any stipulation or agreement entered into between the
creditors and principal debtors without their consent. It
is equally well settled, however, that no subsequent contract
or agreement between the principal debtor and the
creditor, which does not alter or vary the liability of the
sureties, or in some way affect their rights under the contract,
will discharge them. And, as we have already said,
this can only be done by a contract founded on a valid
consideration. (8 Tex., 67; 4 How., Miss., 687; 11 Wend.,
323; 14 Ohio, 386.)
From these obvious and fundamental general principles,
it follows, and is universally held, that a binding agreement
for extending the time, however short, for payment
of the debt, will discharge the surety. On the other hand,
mere delay in its collection, a promise to give time not
based on an adequate consideration, or a promise to forbear
its collection indefinite as to time, or an assent to an
application for extension of time on the expectation of
additional interest, will not release the surety. (4 Leigh,
626; 31 Miss., 664; 4 How., Miss., 691; 12 Wheat., 636;
2 Pars. on Bills and Notes, 546; Chit. on Bills, 379.)
The agreement of Urquhart to pay additional interest
is the sole ground upon which the surety, Birge, claims
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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/m1/110/: accessed August 17, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .