Wagner v. Wagner (Sup.) 109 N. Westphal v. Williams (App.) 107 ! THE NORTHEASTERN REPORTER VOLUME 113 (185 Ind. 128) MATCHETT v. WINONA ASSEMBLY AND (No. 22882.) (Supreme Court of Indiana. 6. PRINCIPAL AND SURETY 161 DISCHARGE OF SURETY-NEW PROMISE AFTER RELEASE-EVIDENCE. Evidence of statements by a surety requesting further time for consultation with his prin June 23, 1916.) cipal and cosureties, and expressing his desire to do all possible to arrange matters, held insufficient to show a new promise by surety after discharge by extension of time having been granted the principal debtor. 1. PRINCIPAL AND SURETY 104(1) RE- [Ed. Note.-For other cases, see Principal and [Ed. Note.-For other cases, see Principal and Surety, Cent. Dig. §§ 85, 439-441; Dec. Dig. 161.] Appeal from from Circuit Court, Kosciusko County; Francis E. Bowser, Judge. 2. PRINCIPAL AND SURETY 105(4) RE- 3. PRINCIPAL AND SURETY 105(4) RE- Where, on December 31, 1909, a creditor ac- [Ed. Note.-For other cases, see Principal and 4. PRINCIPAL AND SURETY 59-DISCHARGE [Ed. Note.-For other cases, see Principal and DIS 5. PRINCIPAL AND SURETY 130 If, after a surety is discharged by an exten- [Ed. Note.-For other cases, see Principal and H. W. Graham, of Warsaw, Anthony Deahl, of Goshen, and L. W. Royse, of Warsaw, for appellant. Widaman & Widaman, of Warsaw, and McNagny & McNagny, of Columbia City, for appellees. LAIRY, J. The judgment from which this appeal is taken was based upon a promissory note executed by appellees and payable to appellant. The trial court rendered judgment in favor of appellant for the sum of $12,592 as against the Winona Assembly and Summer School Association and against appellant and in favor of appellees John F. Beyer, Christian C. Beyer, and J. Edward Beyer for costs. Upon proper request the court found the facts specially and pronounced its conclusions of law thereon. The questions here presented arise upon the exceptions to the conclusions of law. As shown by the findings of fact the note in suit was executed on the 6th day of November, 1908, by the Winona Assembly and the Summer School Association as principal, and the other three appellees as sureties, and that appellant knew at the time the note was executed that the three last-named appellees were sureties for the principal maker of the note. The note was for the principal sum of $9,000, due 60 days after date, with interest after maturity at the rate of 8 per cent. per annum. The interest For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes to maturity was paid in advance and by the tion of appellant that, in order to constitute "That at neither of the times when said payments were so made on said note was there any request made by the said principal on said note for any extension of the time of its payments, nor were either of said payments made under any agreement and understanding by and between the plaintiff and said principal, that in consideration thereof the time for the payment of said note should be extended, except such agreement as would be implied therefrom, and that each and all of said payments were made without anything said by said principal or said plaintiff about the extension of the time of the payment of said note." The court further finds that all of such payments were made and indorsed on the note without the knowledge of the sureties. As a matter of law the court concluded that appellant was entitled to recover on the note as against the principal maker, but that he was not entitled to recover as against the sureties, and that they were entitled to recover their costs. [1] It appears from the special finding that the payment of $360 as interest on the 1st day of January, 1910, paid the interest on the principal until January 5, 1910, which was four days at least in advance of such payment. There is no controversy as to the law governing the case, if, in connection with the other facts shown in the special finding, it is also found as a fact that there was an agreement between appellant and the principal debtor extending the time for the payment of the note. All parties concede that the law applicable to the facts shown by the special finding released the sureties if it is properly found as a fact that the time of payment was extended by agreement between the creditor and the principal debtor. Such is undoubtedly the law. Williams v. Scott, 83 Ind. 405; Post, Adm'r, v. Losey, 111 Ind. 74, 12 N. E. 121, 60 Am. Rep. 677. Appellant asserts that the finding does not show that there was any agreement between him and the principal debtor to extend the time for the payment of the note to January 5, 1910, at the time interest was paid to that date on the first day of that month, and that finding No. 6 shows that there was no express agreement to that effect. It is the posi understood that, in consideration of the pay- [2] The rule adopted in this state, how- In the case of Hamilton v. Winterrowd, supra, the court said: "There is, to be sure, no allegation of an agreethe facts are stated from which the presumption ment to forbear for three months and a half, but of such an agreement arises. The doctrine of implied agreement rests on presumption. ""Implied contracts," says Blackstone (vol. 2, p. 443) which, therefore, the law presumes that every "are such as reason and justice dictate, and man undertakes to perform." 1 Pars. Con. (5th Ed.) p. 4. Presumptions of law, however, need not be stated in pleading. 2 G. & H. 111. It follows that under our Code it is sufficient to state facts from which the law implies an agreement, without in terms averring the agreement.' 99 In each of the cases cited the question arose in the determination of the sufficiency of an averment of an answer, but the reason for the rule as stated by the court applies with equal force where the sufficiency of a special finding of fact is in question. In other cases this court approved the same proposition of law embodied in instructions. Woodburn v. Carter, 50 Ind. 376; Jarvis v. Hyatt, 43 Ind. 163. [3] It may be that interest paid in advance by reason of a mutual mistake of the parties or on account of a miscalculation of the amount due as interest would not have the legal effect of extending the time for the pay 1 |