89 Me. 376 | Me. | 1896
These two cases were presented together. One is a suit upon two promissory notes, both dated April 15th, 1893, payable respectively in one and two years from their date. The writ is dated April 30th, 1895. The defendant claimed' at the trial that, as to the second note, the action was prematurely brought because of the following memorandum written upon a separate piece of paper, and signed by the payee of the notes.
“Dixmont, Maine, April 15, 1893.
This is to certify that I consent to receive payments on any of William Klein’s notes which I now hold, at any time when he wishes to make a payment. Also that the time of payment of the first five notes may be extended one year each. C. O. Howe.”
It was admitted that the first five notes referred to in the memorandum include the two notes sued. The bill of exceptions contains this statement: “ It also appeared in evidence that this memorandum was prepared by the plaintiff’s wife and signed the same day with the notes.”
We have no question as to the correctness of this ruling. The memorandum, although made upon the same day as the notes, as shown by the dates of each and by the statement in the bill of exceptions, must have been made after the signing and delivery of the notes, because it refers to notes “which I now hold,” and, so far as the case shows, there was no consideration whatever for this subsequent agreement made by the payee.
It is unnecessary to inquire as to what its effect would have been if the agreement had been made by the payee prior to the signing or delivery of the notes.
The other exception, which relates to both cases, and is the only one in the other suit, is not urged and need not be discussed. The exceptions, therefore, in both cases must be overruled.
The defendant in this action has recovered a verdict against this plaintiff in a suit growing out of the same transaction. The case came to the law court upon a motion for a new trial, which has been overruled, and judgment will be ordered upon the verdict,— the announcement of the decision being made simultaneously with this. The counsel for the plaintiff in these cases has moved that the judgments, when recovered, both amounting to a less sum than the judgment that will be recovered by this defendant, be set off against the judgment in favor of this defendant, pro tanto. This should be done, but not so as to affect the attorney’s lien- upon the taxable costs in each case.
As the cases are pending in different counties, the set-off of the judgments is ordered by the law court. The entry, therefore, in each of these cases, will be,
Exceptions overruled. Judgment upon the verdict.
The judgment to be set off pro tanto against a judgment recovered by this defendant against this plaintiff in Penobscot County, and ordered by the law court simultaneously herewith, except as to the taxable costs upon which the plaintiffs attorney has a lien.
