63 Minn. 112 | Minn. | 1895
Lead Opinion
According to the allegations of the complaint and the admissions in the answer in this action, there was no dispute as to the sale and delivery by plaintiff to defendant of the merchandise, or as to the reasonable value of the same; and, also, that payment in full therefor had not been made. But, from the allegations of the answer and the admissions found in the reply, it clearly appeared that, after the maturity of the debt, plaintiff, for a valuable consideration, agreed with defendant to postpone and extend the time for the payment of the balance due, — one-fourth of such balance to be paid in August following; another fourth, December 25; another fourth, April 15 of the year following; and the remainder, September 15. No payments whatever had been made upon this balance, and this action, to recover the entire amount due before this agree
Upon considering plaintiff’s motion for judgment on the pleadings, the court below seems to have treated the agreement set out in the answer — and it was also alleged therein that substantially all of defendant’s creditors made the same agreement with him — as a composition agreement, and then to have applied the rule in cases where the conditions precedent in such agreements have not been complied with. The court held that, although one-fourth of the balance of the debt was not due at the commencement of the action, the facts that defendant was then in default as to all of the payments and had paid none of them, and that the last was actually due when the motion was made and was a part of the cause of action stated in the complaint entitled plaintiff to judgment upon the pleadings for the entire debt.
This was error, for the agreement set out in the answer, and conceded by the reply, was not a composition agreement, nor was it conditional in any respect. It was an irrevocable, unconditional agreement, made for a valuable consideration, to extend and postpone the time for the payment of defendant’s indebtedness. As each instalment of the balance unpaid became due and payable under the terms of the new contract, an action to recover the amount of that instalment could have been maintained; but the original contract for payment was not revived by a failure to pay in instalments, nor would an action lie to recover the whole indebtedness until it had all matured. Such an action would be prematurely brought as to instalments not due.
We are of the opinion that it clearly appeared by the pleadings and papers on which the motion was made that the $100 payment referred to in the answer was a part of the total sum admitted in the complaint to have been paid by defendant. No one seems to take issue on this. As it stood conceded that plaintiff was, at least, entitled to recover all that he claimed in his complaint, except the amount of the payment which did not mature until subsequently to the bringing of this action, the case is remanded, with directions that the court below modify the judgment appealed from by deducting therefrom the amount of defendant’s indebtedness which did not fall due until September 15, 1893.
Concurrence Opinion
I concur. The contract pleaded is not an ex-ecutory agreement to extend, provided the debtor perform some condition precedent, but an executed agreement of extension. It is therefore not material whether it was a composition agreement or not.
