
    Charles W. Fawcett et al. v. R. W. Freshwater.
    An agreement between the payee and principal of a note, for the extension of .the time of its payment for a fixed and definite period, in consideration of the same rate of interest as that named in the note, is valid, without the payment of the interest in advance, and, if made without the knowledge of the sureties, will discharge them.
    Motion for leave to file petition in error to reverse the judgment of the District Court of Carroll county.
    The action in the court of common pleas was brought by R. "W. Freshwater, the payee, against Thomas McCort, principal, and C. "W. Fawcett and Richard Bracken, sureties, on a promissory note for $1,250, dated October 5, 1869, due in six months, at eight per -cent, interest after maturity, upon which payment of the interest was credited each year from April 5, 1870, to April 5, 1875.
    McCort, the principal, made no defense.
    Fawcett and Bracken, the sureties, defended on the ground that their relation to the note was known to Freshwater, and that the latter, by an agreement with McCort, had, for a valuable consideration, extended the time of payment of the note, for one year from April 5,1875, without their knowledge or consent.
    The reply denied the averments of the answer as to the extension of time.
    
      It is sufficient to say' that the testimony tends to sustain the defense made by the sureties.
    The bill of exceptions shows that the court found as follows: “That unless there was a payment of interest in advance, the contract to extend the time of payment for one year would not relieve the surety, although there was an agreement to extend the time of payment of said note for one year, upon the payment of eight per Cent, interest on said note, said eight per cent, being the amount stated in said note.”
    There was a judgment for the plaintiff against all the defendants for 'the full amount due on the note.
    On error this judgment was affirmed in the district court.
    By this proceeding, the plaintiffs in error (the sureties) seek the reversal of both judgments.
    
      Shober § Raley, for the motion,
    cited Rittridge v. MeComb, 14 Ohio, 348; Wood v. Newkirk, 15 Ohio St. 295.
    
      Trainer Cook and H. J. Eekley, contra,
    cited Jenkins V. Clarkson, 7 Ohio, pt. 1, 75; Bank of Steubenville v. Carroll’s Adm’'rs, 5 Ohio, 214; Bank of Steubenville v. Iloge et al., 6 Ohio, 17; Farmers’ Bank of Canton v. Reynolds, 13 Ohio, 85; Blazer, Cormine, Gregg § Co. v.-Bundy et al., 15 Ohio St. 57; Ward § Co. v. - Week Bros, et al., 17 Ohio St. 159; Reynolds v. Ward, 5 Wend. 510; M. Lemor'v. Powell et al., 12 Wheat. 554; Abel V. Alexander, 45 Ind. 523; Menifee v. Clark, 35 Ind. 304; Bramor v. Yante, 1 Blackf. 392; Naylor v. Moody, 3 Blackf. 92; Caman v. The State, 4 Blackf. 241; Porter v. Moore, 5 Blackf. 367; Hunt v. Posilewait, 28 Iowa, 427; Jones et al. v. Brown, 11 Ohio St. 601; 31'. Md. 126.
    It is definitely settled that payment of the part of the debt already due will not support a contract. “A valid subsisting legal obligation is no consideration of a contract.” Smith v. Bartholomew, 1 Met. 276; Jenkins v. Clarkson, 7 Ohio, 75; 31 Md. 126.
   Gibmore, J.

The only question is: Did the court of common pleas err'in applying the law to the conclusions of fact found ?

To transpose and restate these findings, as we understand them, they are, in effect, as follows : As conclusions of fact, the court found that there was an agreement between the payee and principal of the note, which was past due, to extend the time of its payment for one year, in consideration of the same rate of interest as that named in the note, of which agreement the sureties had no knowledge; and that, as a conclusion of law thereon, the court held that the agreement was not valid, and did not dis-. charge the sureties, because the interest was not paid in advance.

We are not embarrassed with any question as to what the nature and terms of the contract were, for they are clearly stated in the findings of the court.

In this state such a contract is valid and binding between the parties, without the payment of the stipulated interest in advance, and if entered into without the knowledge of the sureties, will discharge them. McComb v. Kittridge, 14 Ohio, 348.

In Jones v. Brown, 11 Ohio St. 609, Gholson, J., referring to the case cited said : “ The views we have expressed, proceed on the circumstances of this case, and in no respect militate with the decision in McComb v. Kittridge. We understand that case as deciding that a valid promise to pay interest on a note past due, for a definite future period, is a sufficient consideration for an agreement to forbear for that time.” This court has never expressed a doubt as to the correctness of the decision in McComb v. Kittridge, on the point so clearly stated in the latter clause of the above quotation. On the contrary, on the point in question, McComb v. Kittridge has been expressly followed in two other cases. Blazer et al. v. Bundy, 15 Ohio St. 57; Wood v. Newkirk, 15 Ohio St. 295.

We see no good reason for departing from the law as thus laid down and heretofore followed in this court. We therefore hold, that the court of common pleas erred in applying the law to the conclusions of fact found in this case.

Motion granted. The judgments of the courts below reversed; a new trial granted; for which the cause is remanded to the court of common pleas.

Judgment accordingly.  