128 Wis. 419 | Wis. | 1906
The note with interest was payable one year from the date thereof. Eight days before its maturity the defendant Sterr paid to the plaintiff the one year’s interest thereon. It is conceded that the defendant Kukuk signed the note without consideration and for the accommodation of the defendant Sterr. It is claimed on the part of Kukuk that eight days before the maturity of the note, and without his knowledge or assent, the plaintiff and Sterr made a valid and binding agreement to extend the time for the payment of the note for one year, or to June 28, 1904, and that he was thereby released from liability on the note. It is conceded that the only consideration for such agreement was the payment of such interest eight days before it became due. It is well settled that the prepayment of interest before maturity may be a good consideration for a promise to extend the time of payment. Ready v. Sommer, 37 Wis. 265, 267, 268. In that case there was a mutual agreement in writing, and Chief Justice Ryaw said:
“The-prepayment is a sufficient consideration for the extension, under all the authorities, and we think that we ought to hold that the payment sufficiently appears in the paper as a consideration to support the agreement to extend. The payment and the extension are parts of one transaction, evidenced by one paper; the payment benefiting the one party, and the extension the other.” See Union Nat. Bank v. Cross, 100 Wis. 174, 177, 75 N. W. 992.
It is equally well settled that “there must be an agreement to forbear, either express or implied, and mere forbearance
“Mere forbearance to' sue, without any agreement to that effect, is not a sufficient consideration for the promise of another to pay the debt of the person liable, although the act of forbearance was induced by such promise.” Manler v. Churchill, 127 Mass. 31.
The question recurs whether the trial court was justified in finding that the plaintiff and Sterr made a valid and binding agreement to extend the time of payment for another year. Did the plaintiff agree to such extension in consideration of the interest being paid before maturity, and did Sterr pay the interest before maturity in consideration of an agreement on the part of the plaintiff to so extend the time of payment? Or did Sterr voluntarily make the payment at the time he did? And did the plaintiff voluntarily consent to such extension without regard to whether the interest was paid before maturity or not? The plaintiff and Sterr were alone at the time it is claimed the alleged agreement was made. Sterr testified to the effect that the plaintiff came to see him June 20, 1903; that he paid him the interest on the note on that day; that he made an arrangement about extending the time of payment of the note on that day; that the arrangement was that he said to the plaintiff that note must be due; that the plaintiff then said it was over a week yet; that he then said to the plaintiff, “How is it — do you want the money now, or will yon leave it stand ?” That the plaintiff then said, “You can keep it for another year or as long as I live;” and that Sterr then “paid him the interest and nothing further was said after that.” There is also testimony tending to prove that the plaintiff subsequently admitted that the time of payment of the note had been extended for a year. For the purpose of this apj>eal we must assume that such testimony is true, notwithstanding the testimony of
By the Court.' — The judgment of the county court is reversed, and the cause is remanded with direction to enter judgment in favor of the plaintiff and against the defendant as indicated in this opinion.