Babcock v. Kuntzsch ( 1895 )

HARDIN, P. J.

No valid extension of the time of payment was shown by the evidence to have taken place prior to the commencement of the action.

In Miller v. Holbrook, 1 Wend. 318, it was held that a promise to extend was not valid unless founded upon a good and sufficient consideration; also, “the promise of a maker to pay part of a note when due, and payment in pursuance thereof is'not sufficient consideration.”

In Gibson v. Renne, 19 Wend. 388, the .question of the sufficiency of a consideration to support a promise was raised, and, in dealing with it, Bronson, J., said:

“The debt was due. The debtor says to the creditor, ‘Tou promised, in consideration that I would discharge in part an existing and present duty, that you would give further time for the satisfaction of the residue.’ I cannot understand how this makes a good consideration for the promise. The discharge of a legal obligation by the debtor to the creditor cannot be such an injury to the one, or benefit to the other, as will make what the law calls a ‘sufficient consideration’ for an agreement.”

In Parmelee v. Thompson, 45 N. Y. 58, it was held, viz.:*

“A promise to extend the time of payment of a debt is void unless founded upon a good consideration; and a payment of a part of a debt or the interest already accrued, or an agreement to pay interest for the future, is not a sufficient consideration for such a promise; nor will the giving of a new obligation, with' additional security, for part of the debt, be a good consideration for a promise to extend the time as to the residue. The discharge of a legal obligation by a debtor to his creditor is not sufficient consideration for the promise of the latter.” '

In Manchester v. Van Brunt (City Ct. N. Y.) 19 N. Y. Supp. 687, it was said:

“The promise to extend the time of payment of the note was void unless founded upon a good consideration, and the payment of $100, part of the amount due on the note, was not a good consideration for such promise.”

In Graham v. Negus, 55 Hun, 443, 8 N. Y. Supp. 679, it was said:

“If the promises to pay in the future had been verbal only, as there was no consideration to sustain them, the plaintiffs, after accepting them, would have been at liberty at once to disregard the promises, and commence an action for the recovery of their debt.”

In 2 Rand. Com. Paper, p. 650, § 964, it is said:

“An agreement for an extension, to have such effect, must have a new and valid consideration, and without such consideration it will not discharge the surety.”

In Pabodie v. King, 12 Johns. 426, a partial payment was made upon the plaintiff’s debt, and it was claimed there was an agreement in consideration thereof to “forbear to sue.” The court said:

“The promise to forbear was a nudum pactum. In paying the fifty dollars, King did no more than he was legally bound to do; and the promise, on the part of Pabodie, was without any benefit to him, and occasioned no loss to King.”

We think the evidence in the case in hand fails to show a valid extension of time for payment of the indebtedness due from the defendant to the plaintiffs. • The amount of the indebtedness in arrear was substantially admitted during the progress of the trial. We think the county court committed no error requiring us to interfere with the verdict and judgment.

Judgment and order affirmed, with costs. All concur.