Morgan v. Martien
Supreme Court of Missouri
Error to Callaivay Circuit Court. This suit was instituted in the Callaway Circuit Court against defendant in error, on a note, dated May 23,1857, payable two years after date, for four hundred and fifty-two dollars and fifty cents, with interest from date till due-at six per cent-um, and after due ten per centum. Defendant executed the note as security to Joseph G-. Martien, as to whom the suit was dismissed for want of service of writ.
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Error to Callaivay Circuit Court. This suit was instituted in the Callaway Circuit Court against defendant in error, on a note, dated May 23,1857, payable two years after date, for four hundred and fifty-two dollars and fifty cents, with interest from date till due-at six per cent-um, and after due ten per centum. Defendant executed the note as security to Joseph G-. Martien, as to whom the suit was dismissed for want of service of writ. Defendant, James M. Martien, put in an answer averring his release from all liability, upon the following statement of facts : That on the 23d day of May,…
1Opinion of the CourtBat, Judge
The only question presented by the record in this case is whether the acceptance by plaintiff of the deed of trust so changed, altered or modified the original contract as to release the surety.
The general rule of law as extracted from English authorities is, that any variation in the agreement to which the surety has subscribed, which is made without his knowledge or consent, and which may prejudice him, or which may amount to a substitution of a new agreement for a former agreement, will discharge the surety.
The rule is fully recognized by American authorities, and is thus stated by Story,…
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