Warburg v. Wilcox — 7 Abb. Pr. 336

Majority

p. 336

WARBURG a. WILCOX.

New York Common Pleas ;

General Term, October, 1858.

Headnote

Defence.—Aocobd and Satisfaction.—Tendee.

To an action against the maker of a promissory note, he answered that the plaintiff, with other creditors, signed a composition deed, agreeing to exchange the notes they held against the defendant for other extended notes to be drawn by him; and it appeared on the trial that the defendant called on the plaintiff and offered him the new notes which the agreement provided for, but the plaintiff refused to receive them; but that he had not the new notes drawn at the time of the offer.

geld, insufficient. To complete such defence, the party must plead and prove, not only tender of the new notes, but also aver a readiness at all times to perform his part of the agreement, and must bring the new notes thus tendered into court on the trial.

Appeal from a judgment of the Hew York Marine Court.

The facts are stated in the opinion of the court.

—-This action is upon a promissory note made by the defendants to their own order, and transferred to the plaintiff.

p. 337

The defence was, that the plaintiff, with other creditors of the defendants, had signed a composition deed, whereby it was agreed that the time for payment on all the notes held by the parties signing should be extended 9, 12,15,18, and 21 months, and that this time, or any part thereof, had not expired.

On the trial, the composition deed was put in evidence; and from which, aided by the testimony of the defendant Wilcox respecting his action under it, it sufficiently appears that the creditors signing agreed to exchange the paper then held by them of the defendants, for new notes to be drawn by the defendants according to the extension so agreed on.

Although the agreement is somewhat obscure, yet its language, taken in connection with the testimony in the case, clearly shows that this was the nature of the compromise the parties to it intended to make.

To enable the defendants therefore to avail themselves of any defence to this action, arising out of this agreement, it was necessary for them not only to plead and prove tender of the new notes which were to be so exchanged, but also aver readiness at all times to perform their part of the contract, and bring the new notes thus tendered into court at the trial. (3 Blackst. Com., 303; 2 Kent’s Com., 509 ; Brooklyn Bank a. Degraw, 23 Wend., 342 , 345.)

This was not done. It is true the defendant Wilcox testified that at a time when the plaintiff called at his store on this subject, he “ offered him notes upon the time provided in the extension agreement, which he declined to receive.” But he subsequently adds that he had not the notes drawn at the time he made the offer.

As we have seen, this was not sufficient. By the agreement the plaintiff was entitled to the new notes at all events, and to make the defence set up available, the defendants were required to have them in court on the trial, ready for delivery.

For these reasons the judgment of the Marine Court, in favor of the plaintiff, should be affirmed.

Judgment affirmed.

Footnotes

* Present, Daly, F. T., Hilton and Brady, JJ.