Deyo v. Waggoner , 19 Johns. 241 ( 1821 )

Woodworth, J.

delivered the opinion of the Court. The evidence offered by the plaintiff, to prove the payment of the five dollars, for forbearance, was sufficient to warrant the finding of the jury. '

An objection was taken at the trial, that the suit ought to have been brought in the names of Adam and John Waggoner. It is a'sufficient answer, that the contract was made between the plaintiff and the defendant solely. Although John Waggoner might be benefitted by the delay, he had no right to claim it. It is alleged that he was a surety; but whether be was so or not, the plaintiff took up the note, and paid it, together with the costs.

It is further objected, that the agreement ought to have been used as a defence to the suit in the Supreme Court, on the note. It might have been a defence in that suit, on the authority of Keating v. Price. (1 Johns. Cas. 22.) If we admit that no consideration was paid for forbearance, still it was a valid agreement to extend the time. The note of Smith, against the plaintiff, which was paid to the defendant, did not become due until the 4th of May. The agreement was made certainly not later.than the 1st of May; consequently, it was competent to the parties, by a parol agreement, to enlarge the time of performance ; but, although, on this principle, the plaintiff might avail himself of the agreement by way of defence, he was not bound to do so; he had his election, and is not concluded because he waived his defence at that time. The case of White v. Ward and Aylesworth, (9 Johns. Rep. 232.) relied on by the plaintiff in error, does not apply here. In that case, it was ruled, that in a Justice's Court, under the act, a party neglecting to set off matter which would have been a bar, or not having it in his power to make out his defence at that time by proof, cannot afterwards resort to an action for the same cause. If the agreement had been made after the note became due, and was founded on the consideration alleged, it was an agreement substantially not to sue, and could not be pleaded in bar, but the party must be left to his action. (19 Johns. Rep. 129.)

The error in this case, is in the admission of the testimony objected to. It appears to me .that it could not form a ground of damage; although the plaintiff might have suffered inconvenience and loss, by the failure to fulfil the contract. Such remote consequences cannot be taken into consideration by courts, in estimating the damages; besides, there does not appear any necessity, that the plaintiff, at the moment the writ was served, should quit his harvest, and make sacrifices to raise the money.

The jury allowed five dollars on this ground, which we think cannot be supported.

Judgment reversed.