Garnier v. Papin

30 Mo. 243 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

This was an action on a negotiable promissory note against the maker and endorsers. By the consent of the parties, the cause was made to turn on the issue, that the plaintiff, by an agreement, duly executed and for a valuable consideration, with the other creditors of Jos. L. Papin, covenanted and agreed to extend all paper of said Papin whereon these defendants here answering are endorsers, including the note here sued on, so that the same shall be due and payable as follows: twenty per cent, thereof in twelve months; thirty per cent, in eighteen months, and the remainder of fifty per cent, in twenty-four months from and after the 15th of January, 1858.

The plaintiff signed this agreement, but in such a way as not to restrain him from bringing this suit, as he maintained. His signature was made in this manner: “ Louis C. Gar-nier — provided I have the same endorsers for $3,500.” The plaintiff surrendered notes of the description contained in the agreement to the amount of $3,500, but the note in suit did not make part of the amount of $3,500. From this statement of facts it is clear that the plaintiff never did agree to give time on this note. Although his duty to the other creditors, who agreed to give time, might have required that he should have done this, yet he did not do it. He complied with his contract to the extent he undertook to perform it. It is evident that the testimony does not support the issue. The issue is, that the plaintiff did an act; the evidence shows that he ought to have done it, but did not do it. It is not necessary to inquire whether the facts would have entitled the defendants to any relief of an equitable nature by way of injunction, restraining the plaintiff from the prosecution of this suit. No such defence has been made, and no prayer for such relief has been preferred. •

The defence made in the answer could not have been sus tained on a demurrer. A promise not to sue at all on a bond is a good defence, because such a promise amounts to a release. But where a bond is due or to become due, and a promise is made not to sue until some time later than that fixed by the instrument, such promise, however solemnly executed, is no defence to an action on the bond. (Bircher v. Payne, 7 Mo. 430.)

From the view we take of the evidence and pleadings in the case, there was no error in refusing the instructions asked by the defendant, as they did not meet the issue on which the cause was tried.

Judge Ewing concurring, the judgment will be affirmed. Judge Napton absent.