Southwick v. Sax

9 Wend. 122 | N.Y. Sup. Ct. | 1832

By the Court,

Sutherland, J.

The order in question, if negotiable, was in effect a bill of exchange, drawn by the defendant upon V an Rensselaer at sight, in favor of the plaintiff. 1 Wendell, 522, and cases there cited. But whether it was a bill of exchange or not, the plaintiffs had no right to extend the time of payment by an arrangement which bound the defendant, and might operate injuriously upon his rights. The order upon Van Rensselaer was absolute f >va sp^ific liquidated sum, poy ■.... o ,-.. ...oj7 do but to present it, and if payment was refused, to return it to the defendant, and leave him to enforce his rights in such manner as he might think expedient or proper. The plaintiffs were not the agents of the defendant, with general powers to adjust a disputed account, and take such security, and upon gucj1 cre(jjt as they pleased. There was nothing to adjust. The amount was liquidated, and besides the legal import of the order, they were expressly informed by the defendant, when the order was given, that the amount was then due from Van Rensselaer, or would be by the 1st of November, which was a few days thereafter. When the plaintiffs, therefore, undertook to extend credit to Van Rensselaer for six and nine months, and took his note to themselves at those periods, and surrendered to him the original order, they made the debt their own. I question very much whether it was in the power of the defendant to have dis-affirmed the arrangement, and to have prosecuted Van Rensselaer upon the original contract before the extended credit had expired. 1 Cowen, 711. The order "was equivalent to an assignment of the demand to the plaintiffs. The whole amount was due and coming to them. It is not the case of a mere agent transcending his authority, but of an assignee of a chose in action treating with the debtor, and by arrangement obligatory at all events as between them, taking a new security at an extended credit. The assignor, in such a case, stands in the relation of a surety to the assignee, and is discharged, if the assignee, by a binding contract with the debtor, enlarges the time of payment. No principle is better settled, and it appears to me to be strictly applicable to this case. 2 Ves. jun. 540. 2 Bro. Ch. Cas. 579. 2 Caines Cases in Error, 57. 12 Johns. R. 425. 15 id. 433. 16 id. 70. 1 Holt, 84. 4 Bingh. 717. 15 Com. Law R. 126. Chitty on Bills, 371 to 379, note c. Arundle Bank v. Goble, 5 Wendell, 501, where most of the cases are collected.

The motion for a new trial must therefore be denied.