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: 103
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1875.] CLAIBORNE v. BIRcE. 103
Opinion of the court.
that he is released from liability on the notes. This agreement,
however, does not disclose the entire contract between
the parties, if, in fact, there was any undertaking or
agreement on the part of the creditor. If there was any
promise or agreement on his part, what was its terms and
stipulations? Unless they are known, how can it be seen
that the rights or liabilities of the surety are affected
thereby? We may infer, if there was a consideration for
Urquhart's promise to pay additional interest, that it was
most probably an agreement of the creditor to give additional
time for payment of the notes; and if so, this
unquestionably would release the surety. But if the law
imports a consideration to support the written agreement
to pay a stipulated amount or rate of interest, it does not
authorize the jury to infer the nature and character of
such consideration. And, unless it is shown by the testiniony,
neither the court nor jury can say that it affected or
interfered with the contract of the surety, either in law
or fact. Unless it did, the surety cannot complain. (20
Tcx., 123.) It is certainly incumbent upon the surety,
who claims that he has been released from the performance
of his contract by a subsequent agreement between
the creditor and principal debtor, to show a valid and
binding contract on the part of the creditor, which in
some way interferes with or impairs his rights. But this
surely is not done by proof of a promise made by such
principal debtor, which, since the statute dispensing with
scrolls and seals, would support an action without proof
of the consideration on which it was made.
The judgment is reversed and the cause remanded.
REVERSED AND REMANDED.
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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/m1/111/: accessed April 26, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .