Post v. Eaton

SHAFTER, J. This action is brought on the several liability of the defendant as one of the signers of a joint and several promissory note. The answer alleges that the defendant was -but a surety in fact, and that the plaintiffs knew it, though the suretyship did not appear on the face of the note; and that the defendant was discharged by a subsequent contract for further time made between the plaintiffs and the principal against the defendant’s protest. The answer also al[288]leges as a second defense that the action was brought before the time, as enlarged, had fully run.

The answer was demurred to and the demurrer was sustained. The appeal is from the judgment.

The n.ew contract by its terms was to become “null and void” in the event that the note in suit should be paid. To this extent the old and the new are brought into relation, but no further. The note was neither superseded, nor postponed, nor otherwise varied. The contract pleaded was merely a security cumulative to that which the plaintiffs had before. This view virtually disposes of both the questions presented.

Judgment affirmed.

We concur: Sawyer, J.; Sanderson, J.; Rhodes, J.