Draper v. Romeyn

18 Barb. 166 | N.Y. Sup. Ct. | 1854

By the Court, Clerke, J.

Did the plaintiff make siich an agreement with the principal to extend the time of payment, as to entitle the surety to a discharge from his liability1?

It is a rule,, too well settled to admit of dispute, now, that an extension of the time of payment for a single day, without the assent of the surety will exonerate him. But this extension of the credit must be founded on a consideration, and must be such an agreement as precludes the creditor from enforcing payment against the principal until the expiration of a specified period.

In this case, the evidence in relation to the alleged extension shows nothing like an agreement of this nature. There is nothing in it from which a sufficient consideration can even be inferred, or such a promise on the part of the plaintiff as would prevent Mm from commending an action against the principal at any time after the note became due. The witness, Wattson,' says that when he called on the plaintiff, just before the note fell due, to request of him further time to pay it, the latter expressed his anxiety to close the sale of lands before he left for Europe, which lands Bade, the maker of the note, and the witness were employed by him as agents to sell; the witness then “ urged his own willingness, though not bound to do so, to forward the sale of the lands to any emigrants that might arrive during the season, without any additional cost to the plaintiff. On these assurances and considerations,- Mr. Draper (the plaintiff) agreed and promised not to press the collection of the note, nor to ask payment of it for some days; he (the witness) wished him to fix some specific time for payment,” which the plaintiff rather declined. “ It might remain for some days.” The willingness of the witness to serve the plaintiff in another matter could not be deemed a legal consideration to support any agreement; and even if it were,, the promise was too indefinite and uncertain to debar the plaintiff from resorting to his legal remedy against the principal at any time after the note became payable by its terms. The promise, at most, was merely gratuitous, and imported no legal obligation whatever.

[New-York General Term, June 1, 1854.

The judgment should be affirmed.

Mitchell, Roosevelt and Clerke, Justices.)