A copartnership, for whom the defendant was surety on notes due the plaintiff, made a written agreement for a compromise of fifty per cent. with their creditors, among whom were the plaintiff and the defendant, who signed the agreement, which provided for an extension of the time of payment of the notes, and a discharge from indebtedness of the copartnership, personally, on payment of the fifty per cent. The defendant was estopped from denying his assent to the extension of time, and was not thereby discharged from his liability on the notes as surety.
ALLEN, J.
The agreement for a compromise between Peabody Co. and their creditors, signed by the plaintiff, extended the time of payment of the plaintiff's notes, and, being on a good consideration, released the defendant from further liability as surety, unless he consented to the agreement (Crosby v. Wyatt, 10 N.H. 318, 324, Watriss v. Pierce, 32 N.H. 560), or unless, as a part of the agreement, his liability was reserved. Viele v. Hoag, 24 Vt. 46; Blackstone Bank v. Hill, 10 Pick. 129; 1 Par. N. B. 241. The defendant signed the agreement, and assented to all there was in it. He assented that all creditors signing the agreement should receive, at a future day named, fifty per cent. of their debts in full discharge. In assenting to this, he assented to the plaintiff's making the same agreement. He not only assented to the extension of time of payment agreed to by the plaintiff, but he also assented to a reservation of his own liability as surety, by signing the instrument which provided that the claims of creditors against Peabody Co., so far as they were personally concerned, should be released on the payment of the fifty per cent. The limitation of the agreement to claims against the debtors "personally," was an exclusion of the plaintiff's claim against the defendant as surety, and saved his liability.
The agreement for a compromise being in writing, its construction, meaning, object, and effect devolved on the court to determine, and were not within the province of the jury. No question of fraud being suggested, and there being no ambiguity in the terms of the instrument, it could not be varied or controlled by parol evidence of the intention or understanding of the parties to it. It being plain that one effect of the agreement was to extend the time of paying the plaintiff's notes, and that the defendant assented to this by signing the paper, he could not afterwards be heard to say that he did not assent to it. No question being made of the defendant's signing the paper, nor of fraud, and the evidence being conclusive of the defendant's assent to whatever the plaintiff did, either in extending the time of payment or in any way varying the original contract, there was nothing, as the case shows, from which the defendant's discharge from liability as a surety could be inferred. The plaintiff was entitled to his request for a verdict for the amount due on the notes.
Exceptions sustained.
STANLEY, J., did not sit: the others concurred.