
    Edward P. Morgan et al. v. Erastus Peet.
    1. New promise, by assignor of a note after he is discharged by laches of the holder, Where the liability of an indorser of a note has been discharged by the failure of the holder to bring suit against the maker in due time, and the holder relies upon a new promise to pay, made by the indorser after such discharge, such new promise, to be binding, must have been made with knowledge of the facts from which the discharge arose.
    2. If the indorser had knowledge of such facts, whether he knew that, by the rules of law, they would operate to discharge him, is immaterial.
    "Writ of Error to the Circuit Court of Peoria county; the Hon. M. Williamson, Judge, presiding.
    This was an action of assumpsit brought in the court below by Edward P. Morgan and Ralph R. Root, against Erastus Peet, as the indorser of a promissory note, executed by Bur-dick and Peet to Erastus Peet, and indorsed by the latter to one Earl, and by Earl to the plaintiffs.
    A trial resulted in a verdict for the defendant. The plaintiffs bring the cause to this court upon writ of error. The grounds upon which the alleged error arises are set forth in the opinion of the court.
    Mr. J. K. Cooper, for the plaintiffs in error.
    Messrs. Johnson & Hopkins, for the defendant in error.
   Mr. Justice Lawrence

delivered the opinion of the Court:

This was an action against the indorser of a note whose liability had been discharged by the failure of the holder to bring suit in due time against the makers. The plaintiff relied on a promise to pay, made after such discharge. The court instructed the jury that such promise would not be binding, unless made with knowledge of the facts from which the discharge arose. This was in conformity with the opinion of this court when this case was formerly before it, as reported in 31st Ill. 289. But, after a careful examination of the evidence, we can entertain no doubt that a new promise was made, with full knowledge that the holder of the note had allowed a term of court to elapse without bringing suit against the maker. Whether the indorser knew, that, by the rules of law, such laches of the holder discharged him, is immaterial. It is sufficient, if he knew the facts, and the conviction that he did know them is irresistible, under the evidence spread upon this record. He was the father of one of the makers of the note, who was unmarried and lived with him. The payment of the note was made the subject of much negotiation. The holder’s agent had come from Ohio to collect it, and waited some days in Peoria to that end. The defendant seems to have been familiar with the business of his son, for whom he had become indorser, and insisted that Burdick, his son’s partner, had means in his hands with which the note should be paid. These circumstances raise a very strong presumption, that he knew his son had not been sued. But all doubt is removed by other and positive evidence. Earl, who was trying to collect the note, as agent for the holders, swears positively that the defendant knew the note had not been sued. He might well have known that fact and been able to swear to it, from statements made to him by the defendant. It is said, however, that this witness is contradicted in material points by other witnesses. But if we lay his testimony out of the case, and examine that of William H. Peet, the son of defendant and one of the makers of the note, we find the proof on this point equally clear. He says in his deposition: “ Earl wanted father to borrow money to pay him. Father said he had no right to borrow money to pay him — that it was not his place to pay it, as Earl had not tried to get the money from Burdick & Peet.” This clearly shows that the defendant knew Burdick & Peet had not been sued, and, taken in connection with the other testimony, leaves no doubt on that point. The new promise is proven, not only by Earl, but by Moss, at a subsequent time and unequivocally. We can only explain this verdict by remembering the well known reluctanee of juries to find against parties who sign contracts merely as sureties. But the law itself extends to them sufficient favor, and juries cannot be permitted to extend this favor still-further by finding verdicts warranted neither by the evidence nor the instructions. This judgment must be reversed and the cause remanded.

Judgment reversed.  