
    Wickham v. Terhune.
    
      (Supreme Court, General Term, Third Department.
    
    December 11, 1889.)
    Guaranty—Rights of Guarantor—Waiver.
    On dissolution of their partnership, plaintiff paid defendant one-half the amount, of a bill due the firm from third persons; on the understanding that, if it should: not be collected, defendant was to repay plaintiff. Plaintiff accepted from the firm debtors a promissory note for the amount of the bill, payable to himself, and defendant expressed his satisfaction therewith, and requested plaintiff not to sue on the note. Held that, assuming that defendant was a guarantor, the case should have been submitted to the jury as to whether defendant consented to the taking of the note.
    Appeal from Sullivan county court.
    Action by Samuel S. Wickham against Joseph F. Terhune. Plaintiff was nonsuited, and now appeals.
    Argued before Learned, P. J„ and Landon and Putnam, JJ.
    
      T. A. Read, for appellant. Geo. H. Decker, for respondent.
   Putnam, J.

This is an appeal from a judgment of the county court of Sullivan county, and from an order denying a motion for a new trial. The parties were partners, and had an account against the Jenkins Flour Company for $477.50. In August, 1882, they dissolved, and plaintiff paid defendant $1,781.85, which includes one-half of the above account of Jenkins Flour Company. Plaintiff testifies that at the time of the settlement the Jenkins bill was discussed by the parties, and it was agreed that, if plaintiff could not collect it, defendant should pay him the one-half thereof, included in the check of $1,731.85. It was afterwards talked over between the parties that plaintiff should get it secured in the best way he could. His son should go to Hew York, and get it fixed in any way he could; and this was the agreement between Terhune and plaintiff. Plaintiff, on September 8, 1882, took a new note at six months from M. J enkins & Co. After this, plaintiff testifies that defendant said he was satisfied- with it, that is, the taking of the new note; that defendant did not wish plaintiff to sue the note,—told him not to sue it; did not want to pay costs, and would pay plaintiff without paying any costs on it. The plaintiff was nonsuited. It is well settled that, in passing on the propriety of a judgment of nonsuit, the party against whom the judgment is rendered is entitled to the most favorable construction of the evidence; and in considering this case we will assume the facts which the testimony of the plaintiff legitimately conduced to prove. Ernst v. Railroad Co., 35 N. Y. 25. How, it appears that, on the settlement of the parties, plaintiff paid the defendant for one-half of an account he was not bound to, as it was uncollected; and defendant said, if it remained uncollected, he would pay the one-half back. That this was a valid contract will not be doubted. It is claimed that plaintiff should put'the bill in judgment, and have an execution returned unsatisfied, before he can collect it. But it appears that this was not done at defendant’s request. Defendant could undoubtedly waive the obtaining of judgment, if otherwise necessary; and there is proof that he did. It is suggested that the position of defendant in regard to this note was that of a surety or guarantor; and that plaintiff, by taking a new note with security, and extending the time of payment, released the surety. It is a fact that ordinarily, where a principal extends the time of payment in any binding way, so as to legally prevent him from enforcing the obligation signed by the surety, without the consent of the latter, the surety is discharged. Powers v. Silberstein, 108 N. Y. 169,15 N. E. Rep. 185. Such extension must be without the consent of the surety. How, assuming that the defendant was a surety for the payment of the Jenkins note, there is evidence in the case that the new note was taken with his consent. It was agreed with defendant that plaintiff or his son should go to Hew York, and get it fixed any way they could. Plaintiff’s son went down, and brought back the note. Defendant said he was satisfied with it, and afterwards said he would pay plaintiff. Hence, if the case had been submitted to the jury, they could have properly found, on the evidence, a consent of the defendant to the taking of the new note. Again, there is no evidence that when he took the new note of M. Jenkins & Co. plaintiff made any valid agreement to extend the time payment of the claim against the Jenkins Flour Company. The burden was on the defendant to show s.uch extension. Id. The new note may have been taken merely as collateral to the old claim. We conclude that the case should have been submitted to the jury, and hence that the judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.  