Upon this appeal it must be presumed that the judgment entered upon the decision of the trial court was reversed upon the law and not upon the facts. (Code Civ. Pro. Sec. 1338.)
As none of the rulings upon evidence are presented for our consideration, and as the trial court's conclusions of law are clearly supported by the facts found, the only question that survives for our decision is whether any material finding of fact is without evidence to support it. (Nat. Harrow Co. v. Bement Sons, 163 N.Y. 505.)
The learned Appellate Division seems to have based its *Page 387 decision upon two grounds: (1) That the acceptance by the plaintiff of the interest upon the bond and mortgage for the last half of the year 1893, three days before such interest was due, constituted an agreement to extend the time of payment of the mortgage, which extension worked a discharge of the respondent Casey from his liability on the bond. (2) That the receipt by the plaintiff of an increased rate of interest without the knowledge or consent of Casey, was such a variation of the terms of the contract of suretyship assumed by the latter as to accomplish the same result.
In respect to the first question, the trial court found as a fact that there was no agreement on the part of the plaintiff to extend the time of payment of the bond and mortgage. If there was any evidence to sustain this finding the Appellate Division erred in reversing it as a matter of law. It is the settled law of this state that any extension of the mortgage debt by the creditor, without the knowledge or consent of the bondsman, releases the latter to the extent of the value of the land. (Murray v.Marshall, 94 N.Y. 611; Antisdel v. Williamson, 165 id. 372.) And this is true although it suspends the right of action but a single day. (Place v. McIlvain, 38 N.Y. 96, 99;Ducker v. Rapp, 67 id. 464, 472.) But to effect this result there must be a valid agreement, express or implied, between the creditor and the principal debtor. (Powers v. Silberstein,108 N.Y. 169; Cary v. White, 52 N.Y. 138.)
The facts relating to this question, are that on December 29th, 1893, three days before it was due, the interest on the mortgage was paid to and received by the defendant. In that year December 29th fell on Friday, so that the day of payment was followed by a legal half holiday, one Sunday and a full legal holiday, the latter being the day on which the interest was due. The respondent gave no evidence of any express agreement to extend the time or to forbear the collection of the debt during the days mentioned. The receipt by the plaintiff's auditor of the interest on December 29th is relied upon as of itself constituting an agreement to extend *Page 388 the time of payment, or to forbear the enforcement of the debt. Upon this subject Brandt on Suretyship (2d ed. 352) says: "The general rule is that the reception of interest in advance upon a note is prima facie evidence of a binding contract to forbear and delay the time of payment, and no suit can be maintained against the maker during the period for which the interest has been paid, unless the right to sue is reserved by the agreement of the parties. The payment of interest in advance is not of itself a contract to delay, but is evidence of such contract, and while this evidence may be rebutted, yet in the absence of any rebutting evidence it becomes conclusive." The rule as thus laid down seems to be supported by the great weight of authority in this country. (Hitchcock v. Frackelton, 116 Mich. 487, 491;Warner v. Campbell, 26 Ill. 282; N.H. Savs. Bank v. Ela,11 N.H. 335; Same v. Colcord, 15 id. 119, 124; Crosby v.Wyatt, 10 id. 318; People's Bank v. Pearsons, 30 Vt. 711;Batavian Bank v. McDonald, 77 Wis. 486, 500; Hollingsworth v. Tomlinson, 108 N.C. 245; Scott v. Saffold, 37 Ga. 384;First Nat. Bank of Springfield v. Leavitt, 65 Mo. 562; Am.Nat. Bank v. Love, 62 Mo. App. 378; Union Bank v. McClung, 9 Humph. [Tenn.] 98.) In some states it is held that the taking of interest in advance is not only prima facie evidence of an agreement to forbear, but is conclusive evidence of such an agreement. (Gardner v. Gardner, 23 S. Car. 588; Preston v.Henning, 6 Bush [Ky.], 556; Jarvis v. Hyatt, 43 Ind. 163;Hamilton v. Winterrowd, Id. 393; Woodburn v. Carter, 50 id. 376; Starret v. Burkhalter, 86 id. 439.) In other jurisdictions there has been a disposition to hold that the taking of interest in advance is not evidence of an agreement to extend the time of payment. (Agricultural Bank v. Bishop, 6 Gray, 317; Blackstone Bank v. Hill, 10 Pick. 129; OxfordBank v. Lewis, 8 id. 458; Haydenville Savs. Bank v.Parsons, 138 Mass. 53; Mariner's Bank v. Abbott, 28 Me. 280;Freeman's Bank v. Rollins, 13 id. 202.)
We think the rule first adverted to and supported by a *Page 389 great preponderance of authority is just and sound. The taking of interest in advance may properly be regarded as prima facie evidence of an agreement to extend the time of payment, which may be rebutted by other facts and circumstances. Applying this rule to the case at bar, it will be seen that only three days intervened between the payment of the interest and the date when it was due. The first was a legal half holiday, the second was a full legal holiday, and the third on which interest was due, was also a legal holiday. Nothing was said about an extension of time, and the circumstances which indicate that there was no intention to extend the time of payment are, to say the least, quite as strong as those relied upon to show that such an intention existed. Taking all the evidence together, we cannot say that there were no circumstances to rebut the presumption arising from the acceptance of the interest by the plaintiff three days in advance. It was, therefore, a question of fact whether such an extension was intended and we think the Appellate Division erred in reversing this finding of fact as a matter of law. The case of Wakefield Bank v. Truesdell (55 Barb. 602) is in entire accord with our view, for in that case the General Term of the Supreme Court affirmed the decision of a referee who had found that the evidence disclosed an intention on the part of the plaintiff to extend the time of payment.
The second question we are called upon to consider is whether the increase in the rate of interest from five per cent to six per cent for the last three months of the year of 1893, under the direction of the finance committee of the plaintiff, and received and accepted by the plaintiff, was such a variance of the terms of the contract entered into by the defendant Casey on his bond, as to discharge him from any liability thereon. The trial court found that the acceptance by the plaintiff of a different rate of interest than that provided in the bond and mortgage did not prove an agreement to change the rate of interest, and that no consideration for such an agreement was shown. The learned Appellate Division held that the change in the rate constituted a valid, executed agreement *Page 390 to change the rate of interest, which discharged Casey from his liability. The bond in suit provided that the interest should be payable semi-annually at five per cent "until the principal sum be paid." "When the contract provides that the interest shall be at a specified rate until the principal be paid, then the contract rate governs until payment of the principal, or until the contract is merged in a judgment." (O'Brien v. Young,95 N.Y. 428.) If, then, there was a valid agreement for the alteration of the provisions of the bond in respect to the rate of interest, by increasing the amount thereof, a greater burden was placed upon the owner of the land and the bondsman was thereby discharged. (Antisdel v. Williamson, 165 N.Y. 372;Murray v. Marshall, 94 id. 611; Page v. Krekey, 137 id. 307; Paine v. Jones, 76 id. 274.)
It is conceded that the rate of interest was increased by order of the finance committee of the plaintiff; that the plaintiff accepted and retained the interest at the increased rate; and that the then owner of the land paid the increased rate, thus acquiescing in the change. These facts, we think, clearly disclose an executed agreement entered into by the plaintiff with the owner for a change in the rate of interest. The appellant urges that there was no consideration shown for such agreement. With the amount of the increased interest in its coffers, the plaintiff cannot be heard now to say that there was no consideration for such an agreement. We think the Appellate Division properly held that the only inference to be drawn from the facts upon this branch of the case was that the plaintiff intended to and did change the rate of interest by increasing it one per cent, and that the owner of the land acquiesced in such change by paying the increase. In Dewey v. Reed (40 Barb. 16) the holder and maker of a promissory note, by agreement with the maker and without the knowledge or consent of the surety, changed the note so that the interest should be payable semi-annually, instead of at the date of maturity, and it was held such a material alteration as to release the surety. In Harsh v.Klepper *Page 391 (28 Ohio St. 200) the interest on a note was increased one per cent, and the surety was exonerated from liability thereby. To the same effect is Warrington v. Early (2 El. Bl. 763). The appellant cites the case of Merritt v. Youmans (21 App. Div. 256) as sustaining his contention, but there the interest was reduced one per cent, instead of being increased, and, as was said in the similar case of Cambridge Savs. Bank v. Hyde (131 Mass. 77, 79), "if the change in the original contract from its nature is beneficial to the surety, or if it is self-evident that it cannot prejudice him, the surety is not discharged." CitingSmith v. United States (2 Wall. 219); Appleton v. Parker (15 Gray, 173); General Steam Navigation Co. v. Rolt (6 C.B. [N.S.] 550); Bowmaker v. Moore (7 Price, 223); Holme v.Brunskill (L.R. [3 Q.B.D.] 495). So far as the cases ofOffutt v. Glass (4 Bush, 486) and Eaton v. Waite (66 Me. 221) are in conflict with the views herein expressed, we do not deem it wise to follow them.
We think the learned Appellate Division properly reversed the finding of the trial court upon the second ground, as a matter of law, and its reversal should, therefore, be affirmed.
PARKER, Ch. J., HAIGHT and VANN, JJ., concur with GRAY, J.; MARTIN, J., concurs with WERNER, J., and BARTLETT, J., concurs also, on the ground that there was an unlawful extension, and also that there was a valid agreement changing the rate of interest and discharging the surety.
Judgment reversed, etc.