
    Blazer, Corwine, Gregg & Co. v. Hezekiah S. Bundy and others.
    1. An agreement made, upon good consideration, by a judgment creditor with his principal judgment debtor, without the knowledge or consent of the sureties, to extend the time for the payment of the judgment, will discharge the sureties.
    
      2. An agreement by the debtor to pay, and the payment by him, of a rate of interest greater than six per centum per annum, for a future period, constitutes a good consideration for a promise by the creditor to extend the time of payment of his debt. Me Comb v. Kittridge, 14 Ohio Rep. 348, followed.
    Error to the district court of Jackson county.
    
      This petition in error is prosecuted to reverse a judgment of the district court of Jackson county, perpetually enjoining the plaintiffs in error, from collecting of the defendants in error, a judgment rendered in the court of common pleas of Pike county, in their favor against John J. Hoffman as prin • cipal debtor and the defendants in error as his sureties.
    
      A bill of exceptions was signed, setting forth all the evidence given in the case, the agreed facts and the special findings of the court, on which the judgment was rendered.
    The ground upon which the defendants in error demanded the relief prayed for in their petition, was an alleged agreement made without their knowledge or consent, by the plaintiffs in error with the said Hoffman, the principal debtor, to give time for the payment of the judgment.
    The district court, among other things, find “that there was a valid and binding agreement between the said Blazer, Cor-wine, Gregg & Co., and the said John J. Hoffman to extend the time for the payment of the judgment, in the petition mentioned, for the period of thirty days from 27th day of April, 1858, and the plaintiffs as sureties of the said John J. Hoffman were discharged from any further liability upon said judgment.”
    The material evidence of the agreement for the extension of time for the payment of the judgment, is admitted to be contained in the following correspondence between the plaintiffs in error and Hoffman:
    “ Jackson, April 26, 1858. .
    “Messrs. Blazer, Corwine & Co.,
    “ Gents: — I learn from our sheriff, that he has an execution on your judgment against me, and, I presume, he will proceed to make the money unless I make it for him. I failed to make the sale of my furnace stock that I expected to make when Mr. Jones was here, and did not write to you as I intended. I did not sell, nor could I raise a portion of the judgment, and supposed that unless I could, that you would not be willing to renew or extend. I do not want my property sold on execution, and if your claim is to come out of the property, I can certainly sell it ón as good terms and as soon as the sheriff can. I have no disposition to keep you out of your money one moment longer than I can pay it, and it is to my advantage to pay it as soon as possible, and the simple reason why I have not done so is, that I have not been able. Times are getting better, and our furnace is in better condition financially, than she has ever been; and in consulting with some of our company, they think I will be able to relieve myself before long, by a sale, and the question is, will you wait, and if so, upon what conditions ? Will you let the judgment stand, say four months, by my paying you your usual rate of interest — one and a quarter per cent, from the date of the judgment to the expiration of the four months; or would you rather have a bill for that length of time in lieu of judgment with the same securities ? My securities are safe, and will be willing to assist me. I will do either of the ways I have stated, and you will confer a favor on me by accepting one of ^em‘
    “ Tours respectfully,
    “ J. J. Hoffman.”
    
      “ PiTceton, Ohio, Pith April, 1858.
    “ J. J. Hoffman :—
    “ Pear Sir: — We propose that you pay us interest on the judgment against yourself and others up to this time, and pay the costs on the writ to the sheriff, and we will let the execution be returned for thirty days, at which time, upon paying us $500 and interest, we will take new note for ninety days. Your bill for $2000, was due 11th February; seventy-five days’ interest $66.69, protest $1.05=$67.74. Send us this amount, and sheriff’s receipt for all the costs on the writ, and we will order in this writ under the above terms.
    “ Yours truly, Blazer, Coravine, Gtresg & Co.”
    “ Jaclcson, May 25,1858.
    “ Messrs. Blazer, Coravine & Co:—
    “ Gents: — I will not be able to raise you the $500 by the 27th, the time specified in your letter. I might be able to raise it or more in thirty days; and if you are disposed to do so, you can send me the amount of interest for thirty days, and I will remit to you immediately.
    “ Yours respectfully, J. J. Hoffman.”
    “ Piketon, Ohio, May 27, 1858,
    “ J. J. Hoffman, Esq :—
    “ Pear Sir: — Yours of the 25th is at hand. You can forward us $20.67, which will pay interest to the 27th May. We will let the matter rest for one month, hoping that you can then pay us a portion of the principal.
    “ Truly yours, Blazer, Corwine, Gregg & Co.”
    “ Jackson, May 31,1858.
    “ Gents: — I inclose you $20.67, for interest to May 27, as per your letter of the 27th inst. With many thanks for your indulgence, I remain,
    “ Yours truly, J. J. Hoffman.”
    “ Jackson, May 3,1858.
    
      “ Messrs. Blazer, Corwine & Co.:
    “ Gents: — I send you by my brother, $70.00. The interest as per your letter, is $67.74, and the costs on the execution which I do not know. .The 74 cents for issuing the execution is not taxable to me, as it was not in accordance with the judgment, and Dave should not claim it. I would have sent sooner, but as he was going down, I thought best to wait. I will try and raise the $500.
    “ Yours, etc., J. J. Hoffman.”
    “ Piketon, Ohio, June 1, 1858.
    “ J. J. Hoffman, Esq. :—
    “ Pear Sir: — Yours of the 31st May came to hand, with check on Bennett & Co., for $20.67. You either mistook our figures, or we made a mistake in writing; the interest on your debt for $2000 for thirty days, is $26.67. We have extended credit for the time the $20.67 will extend. Hope you will correct.
    “ Truly yours,
    Blazer, Corwine, Gregg & Co.”
    
      “ Pilceton, June 8, 1858.
    “ J. J. Hoffman, Esq. :
    
      “Pear Sir: — Your inclosed, of the 7th, is at hand, which pays us interest up to 27th May, 1858; for which we are much obliged, and we remain,
    “ Yours, etc., Blazer, Corwine, Gregg & Co.”
    The errors assigned are:
    1. The evidence as set forth in the bill of exceptions, does not support the finding of the court, that such a subsisting agreement was entered into between plaintiffs in error and Hoffman, as to discharge defendants in error from liability upon the original judgment.
    2. The district court erred in rendering judgment against plaintiffs in error upon its findings.
    3. The judgment was for the defendants in error, when it should have been for the plaintiffs in error.
    
      Hutchins Sf Gaffy, for plaintiffs in error.
    
      O. N. Olds, and Bingham Me Guffey, for defendants in error.
   Wilder, J.

The only question presented for our determination in this case, is, whether by the evidence set forth in the bill of exceptions, it is shown that a valid agreement was made by the plaintiffs in error with Hoffman, to extend the time for the payment of the judgment held by them against Hoffman as principal debtor, and the defendants in error as his sureties. It is not claimed by counsel for the plaintiffs in error, in argument, nor could it well be, that if such agreement was in fact made, the defendants in error were not discharged from their liability to pay the judgment. The claim by them is, that there was no consideration for the promise to delay execution, as the amount paid as interest was fast due, and there was the same obligation to pay it as the principal itself. That the excess over and above six per cent. in law, was payment of so much of the principal, they cite McComb v. Kittridge, 14 Ohio Rep. 348; and Jones and others v. Brown, 11 Ohio St. Rep. 601.

It is shown in the case, that at the February term of the court of common pleas of Pike county, the plaintiffs in error recovered a judgment against Hoffman, as principal debtor, and the defendants in error, as his sureties, for $2126.48, and for costs. This judgment was recovered on a bill of exchange for $2000, dated December 13,1857, at sixty days. In April, 1858, an execution was issued, on which the costs taxed were seventy-four cents.

The material portions of the evidence in respect to the agreement to extend the time for the payment of the judgment are contained in the written correspondence between the plaintiffs in error and Hoffman, commencing on the 26fch April, 1858. In a letter of that date, Hoffman writes to the plaintiffs in error, making the following inquiries, and propositions :

“ Will you wait, and if so, on what conditions ? Will you let the judgment stand, say four months, by my paying you your usual rate of interest, one and a quarter per cent., from the date of judgment to the expiration of the four months; or would you rather have a bill for that length of time in lieu of judgment, with the same securities. ... I will do either of the ways I have stated ?”

In reply, under date of the 27th of April, 1858, the plain tiffs in error wrote :

“ We propose that you pay us interest on the judgment, against yourself and others, up to this time, and pay the costs on the writ to the sheriff, and we will let the execution be returned for thirty days, at which time, upon paying us $500, and interest, we will take new note for ninety days. Your bill for $2000 was due 11th of February;-seventy-five days interest $66.69,-protest $1.05=$67.74. Send us this amount and sheriff’s receipt for all the costs on this writ, and we will order in the -writ under the above terms.”

This proposition seems to have been acceptable to Hoffman, and on the 3d of May, he forwarded to them $70, $67.74 for the interest, and the residue for'the costs on the execution, the amount of which he did not then know, but which was, as before stated, seventy-four cents. The execution was returned, and the time given.

On the 25th of May, Hoffman wrote them that he could not raise the $500 by the 27th, but might be able to raise it in thirty days, and that if they would advise him of the amount of interest for thirty days, he would immediately remit it. This was done, and on the 27th they gave the amount, or intended to give the amount $26.67, “ which,” they state, “ will pay interest to 27th May ; we will let the matter rest for one month.” The amount, $26.67, was promptly paid by Hoffman.

It will thus be seen, that the agreement made between the parties, and upon which they acted, was, that if Hoffman would pay $67.74 for interest up to April 27, 1858, and for protest, and would also pay the costs upon the execution, the plaintiffs in error would let the execution be returned for thirty days; and if at the end of thirty days Hoffman would pa.y $500, and interest, they would take a new note at ninety days. The $67.74 were paid, and also the costs upon the execution, and the thirty days time given. At the expiration of that time, Hoffman representing that he was not then able to pay the $500, its payment was not insisted upon, but on the payment of $26.67 for interest from April 27, to May 27, the further time of thirty days was given. The interest seems to have been calculated at the rate of fifteen per cent, per annum.

The payment of this rate of interest for the time prior to the 27th April, 1858, was not, however, the entire consideration of the agreement. It was an element in the contract that Hoffman should pay the costs on the execution, and a further element, that if at the expiration of thirty days he paid $500, and the interest, further time was to be given. In pursuance of that part of the agreement $26.67 was paid for one months’ interest, and the further time of thirty days given.

If the payment of the usurious interest for the time prior to the 27th of April did not constitute a good consideration, the agreement to pay, and the payment of such interest for the month following the 27th of April, did constitute such consideration, and brings this case directly within the principle decided in McComb v. Kittridge, 14 Ohio Rep. 348.

The judgment of the district court is affirmed.

Brinicerhoee, O.J., and Scott, Ranney and White, JJ., concurred.  