Whittaker v. Crow, Hargadine & Co. , 1889 Ill. App. LEXIS 69 ( 1889 )

Wall, J.

It appears from the record that A. S. Whittaker made his promissory note to Crow, McCreery & Co. for $789.50, payable December 20, 1874; that no payment was made thereon within ten years after maturity; that Crow, Hargadine &Co. became the holders by indorsement, and that after the statute of limitations—ten years—had fully rim, the following proposition and acceptance were written on the back of the note.

“We agree to accept five hundred dollars in full satisfaction of within note during 1885.

“ Crow, Hargadine & Co.

“I accept the above condition.

“ A. S. Whittaker.

“St. Louis, March 20, 1885.”

The question is, what legal significance is to be attached to these entries ? Plaintiff in error urges that the holder of the note merely proposed to accept the sum mentioned within the time mentioned, but that the debtor while accepting the condition did not bind himself to pay. If so, then the offer of the creditor was without consideration and not binding on him, and therefore nothing obligatory was effected on either side. We think, however, the parties intended to contract, and did contract, the one to pay and the other to receive, and that, upon the maturity of the contract thus made, an action would lie by the promisee against the promisor. In substance it was a new contract by the debtor based on the moral consideration of the old debt to pay the sum agreed on within the time fixed, and it was a surrender on the part of the creditor of all other demands growing out of the former liability. If this be the correct view it follows that the defendants in error were entitled to an allowance for the principal sum thus promised, which was granted by the Circuit Court, and as the contract was in writing interest also was allowable after maturity.

The cross-errors assigned are upon the failure of the court to allow such interest. This point is well made. The judgment will be reversed upon cross-errors and the cause will be remanded with directions to allow interest at six per cent after maturity of said new contract. The defendants in error will recover their costs herein.

Reversed and remanded with directions.