I concur in the disposition made of this case. The trial court in the charge to the jury submitted but one issue, and that to the effect that, if the jury should find that the bank accepted either of the renewal or extension notes executed by McGee in payment of and in satisfaction of the note sued on, to find for the appellant. The jury found for the appellee on the issue, and the finding is amply supported by the evidence. I am of the opinion that the liability of the surety does not rest upon the question of injury resulting to him by reason of the extension of the date of payment. There is neither pleading nor evidence of injury, but a question of agreement, and thereby waiver. In Red River National Bank v. Bray et al., 105 Tex. 312, 148 S.W. 290, and Benson v. Phipps. 87 Tex. 578, 29 S.W. 1061, 47 Am.St.Rep. 128, the Supreme Court held that, if the creditor enters into a valid and binding contract with the principal for an extension of the time of payment, promising to pay interest during the time extended, such contract will release a surety who does not consent to the extension. The question raised by the issue tendered is: Did the giving by McGee and acceptance by the bank of either or both of the extension notes, in the absence of an agreement that same should be in discharge and satisfaction of the note sued on, have the effect, as a matter of law, to discharge the surety? Under the above authorities the McGee extension notes would have the effect to release the surety, if the surety did not consent thereto. The holding in each of the cases referred to is made on the provision that the surety has not become a party to the transaction by consenting to the extension. Has he consented to an extension? In the note sued on is this provision:
"The makers and indorsers hereof severally waive protest, suit, demand and notice of protest and nonpayment in case this note is not paid at maturity, and agree to all extensions and partial payments before or after maturity without prejudice to the holder."
This provision in the face of the note is an express agreement by the appellant to the extension of payment. It could have no other application or meaning. It is as much a part of the note as any other provision therein.
I believe that a proper result has been reached. *Page 896