5 Cow. 497 | N.Y. Sup. Ct. | 1826
The agreement on the part of the plaintiffs, not to dispose cf, or call for the payment of the note on which this suit was brought, until the NewYorlc debts, for the payment of which the defendant had become security for the plaintiffs, were settled, was made at the time of giving the note. It was not a subsequent agreement to enlarge the time of payment. The defendant objected to giving the note, on the groun d that he was holden for the New York debts ; the plaintiffs then declared that they would not dispose of, or call for payment of this note, until the New York debts were settled ; upon which the defendant signed the note; and after he had signed and delivered it, the plaintiffs reiterated the declaration that they would not dispose of, or call for payment of the note. This was all one transaction. The agreement to enlarge the time of payment, was, in fact, made before the note was given. The subsequent declarations of the plaintiff, made during the same conversation, was merely an acknowledgment, that such was the agreement made between the parties. The evidence should have been rejected. (1 John. Cas. 22. 3 John. 528. 1 Cowen, 250, and the cases there cited.)
The defendant was not confined to the precise day stated in the notice. The day was not material, provided it was subsequent to the original contract.' ■ (1 Chit. Pl. 258.)
Evidence of an enlargement of the time of performance is admissible under the general issue. It shows that the plaintiffs, at the time of suit brought, had no cause of action. (1 Chit. Pl. 472. 13 John. 56. 15 John. 231. 4 Taunt. 163. 1 John. Cas. 22. 3 John. 528.)
A new trial must be granted on the first ground.
New trial granted.
