Citation Numbers: 46 Barb. 218
Judges: Miller
Filed Date: 5/2/1864
Status: Precedential
Modified Date: 1/12/2023
The finding of the judge that bn the 8th and 9th days of November,.I860, the Bank of Sing Sing became indebted to the plaintiff in the sum of $332.52, being the amount bf certain checks on said bank, and in the further sum of $375, and $80 for moneys Collected by the bank, on notes forwarded by the plaintiff to said bank for collection, appears to have been warranted by the evidence in the case. The testimony establishes the foregoing facts, beyond any controversy or dispute, and the ledger of the batik proves that the plaintiff was credited with these amounts. It does not alter the fact that the bank was indebted for the amount Of the checks and notes, to' the plaintiff, because they wete collected and the money paid to the bank. The indebtedness on account of them, to the plaintiff, still existed, and there is, therefore, no ground of exception to this finding of the judge;
It is insisted that the note was taken by the plaintiff with full knowledge that it was an accommodation note, and that the plaintiff can not recover unless it gave a valuable consideration for it, which does not appear to have been done.
The evidence on the trial shows that the plaintiff’s agent, on the 7th of November, 1860, demanded payment of the moneys due from the Bank of Sing Sing, and a return of the paper and notes which had been left for collection with said bank. The defendants then stated to the plaintiff’s agent that the bank was embarrassed, temporarily, and requested him not to press his claim by taking legal action for the collection of the protested draft and' other indebtedness accrued and to accrue, and not to withdraw the notes held for collection. The request of the defendants was acceded to, and in consideration of it the defendants made and delivered the note in question, to the plaintiff.
In the second place, the time for the payment of the original indebtedness was by this agreement extended, and until it had expired the plaintiff was precluded from bringing a suit against the Bank of Sing Sing, for its recovery. I think this was the purport and legal effect of the agreement, and would have been a good defense to a • suit brought against the bank prior to the expiration of the period which the note had to run. In the interview between the plaintiff's agent and the defendants, the agent expressly stated that he came to get security and to withdraw the collection paper; and upon being asked if the plaintiff would be willing to give a month's time, he replied, a month or more, as his object was to get security. The note was then given, by the defendant. Can there be any doubt that, under these circumstances, the time for the payment of the indebtedness of the bank was extended, and that a valid and legal subsisting agreement existed, which would be a bar to any suit brought by the plaintiff, to recover the demand, until the note was due ? I think not.
An agreement to forbear to sue is a good consideration for the promise of a third person to pay the debt. (Watson v. Randall, 20 Wend. 201. Edwards on Bills, 223.)
Although the law will not infer that any forbearance was agreed to or intended, merely because a new note was taken,
As there was clearly a good and sufficient consideration to support the note, ip the agreement of the plaintiff not to withdraw the collection paper from the Bank of Sing Sing, and in the agreement not to press the claims against the bank for its indebtedness to the plaintiff which had accrued and was to accrue, it is not necessary to examine some other objections, taken by the defendants.
The judgment must be affirmed, with costs,
Peckham, Miller and. Ingalls, Justices.]