Turnbull v. Brock , 31 Ohio St. (N.S.) 649 ( 1877 )

By the Court.

There is manifest error in the judgment of the district court. It is immaterial whether there was error in the instructions given to the jury in the court of common pleas or not. The plaintiff was entitled to judgmant on the pleadings. Code, § 384. A promise not supported by a consideration creates no legal obligation; and hence its non-performance creates no legal liability. Part payment of a promissory note or debt, already due, is not a sufficient consideration for an agreement to extend the time for the payment of the balance. The makers of the note were under a legal obligation to pay the whole amount, which necessarily included every part, and the, plaintiff, in receiving a part, obtained only what and indeed less than he was entitled to. No benefit, profit, or advantage, in a legal sense, resulted to the plaintiff, nor any detriment or loss to the defendant. The promise alleged, in point of legal obligation, was in nowise different than if it had been a mere naked agreement to extend the time for the payment of the entire amount due.

Motion granted. Judgment of the district court reversed, and that of the common pleas affirmed.