Newell v. Waller , 12 Ill. App. 306 ( 1883 )

Higbee, J.

This was a suit in assumpsit by appellant against William W. Waller, David A. Waller and Adam Waller in the DeWitt Circuit Court. The declaration containing two special counts on promissory notes and the common counts, to which the defendant David A. Waller, filed the general issue, and a special plea as follows: “ And for further plea in this behalf, the said David A. Waller says, that the plaintiff ought not to have his aforesaid action against him, the said David A. Waller, one of the defendants, because, he says, that the several supposed causes of action in the said declaration mentioned are one and the same, to wit: the supposed cause of action in the said first count mentioned, and not different causes of action, and that the promissory note in that count mentioned was made and delivered to the plaintiff by the said William W. Waller, as principal debtor, and by him, the said David A: Waller, as surety for the said William W. Waller, and not otherwise; whereof the plaintiff, at the time of the making and delivery of the said note, as aforesaid, then had notice, and that after the said note became due, to wit, on, etc., the plaintiff, at the request of the said William W. Waller, and in consideration that the said William W. Waller would make, execute and deliver to the said plaintiff a chattel mortgage on certain personal property then owned by the said William W. Waller, to secure the payment of a certain other promissory note, then held and owned by the said plaintiff, against the said William W. Waller, then agreed with the said William W. Waller, to give, and then and there did give to him further day of payment of the amount of said note, to wit, until the 1st day of March, 1878, without the knowledge or consent of him, the said David A. Waller, by reason whereof, he, the said David A. Waller, became discharged from all liability upon the said note, and this the said David A. Waller is ready to verify, wherefore he prays judgment, if the plaintiff ought to have his aforesaid action against him, etc.

By Fullee- & Monsox, his attorneys.”

A demurrer interposed by appellant to this plea was overruled by the court and appellant electing to abide by his demurrer, judgment was rendered on the plea in bar of the action and against him for costs.

The principal objection urged to the sufficiency of the plea is, that it fails to show a sufficient consideration to support the contract therein set forth.

The time of payment was extended until March 1, 1878, as averred “in consideration that the said William W. Waller would make, execute and deliver to the said plaintiff a chattel mortgage on certain personal property then owned by said William W. Waller, to secure the payment of a certain other promissory note then held and owned by said plaintiff against the said William W. Waller.” The plea does not aver that the mortgage was ever made, executed and delivered to appellant, and hence no sufficient consideration appears in the plea to support the contract to extend the time of payment.

By the very terms of this contract, it could only suspend the right of action against the principal debtor when the mortgage was executed.

It has been repeatedly held that an unexecuted promise by a principal debtor to secure his debt is not a sufficient consideration for an agreement to extend the time of payment. Hunt v. Knox, 24 Miss. 655; Van Rensselaer v. Kirkpatrick, 46 Bart. 194; Brandt on Suretyship, Sec. 308.

We are of opinion that the plea was bad. and that the court erred in overruling the demurrer to it, and for this reason the judgment is reversed and the cause remanded.

Reversed and remanded.