Crawford v. Millspaugh — 13 Johns. 87

Majority

p. 87

Crawford against Millspaugh.

Headnote

If the holder of a note after the time ct payment, and after a suit has beea commenced agaiDst the endorser, release the maker by writing, not under seal, and withou* consideration, such release is void, and is no defence in the action against the endorser.

THIS was an action of assumpsit, brought by the plaintiff, as Second endorsee, against the defendant, as second endorser of a promissory note, drawn by Charles Lindsey, for 700 dollars, payable to one Jackson, or order. The cause jvas tried at the Orange circuit, in September, 1815, before his honour the chief justice.

The defendant pleaded, puis darrein continuance, that the plaintiff released Lindsey, the maker of the note, and' in support of the plea, produced, on the trial, the following writing : “ It being represented to me that0. Charles Lindsey is insolvent, I do hereby release him from a certain note of 700 doílars, drawn by him, and endorsed by Joseph H. Jackson and Peter A. Mills pqugh, of which note I am the holder,'not, however, relinquishing my right to recover from any, Or all of the endorsers, upon said note. Dated September 23d, 1814. A'. Crawford.V

A verdict was taken for the plaintiff, for the amount of the note, with interest, subject to the opinion of the court. The ease was submitted without argument.

It is evident, from the facts in this' case, that. the writing set up by the defendant, was made and executed 'some time after the note had become due; indeed, after the commencement of this action, and, consequently, at a period when the defendant was liable for the amount as endorser, so that, if this note, in the hands of the plaintiff, as endorsee, could even be considered, or treated, as a parol agreement, it appears that the promise, on the part of the endorser, was broken, and could not be discharged by a new agreement, without satisfaction, unless it be by deed. The writing upon which this defence is grounded, is not under seal, and. is .without consideration; it must be deemed a mere nudum pactum. (Harrison v. Close, 2 Johns. Rep. 450 .) It is, therefore, unnecessary to advert to the conditions showing the intention of the party, as stated in the writing itself, to decide whether it could be controlled by such condition, admitting it to be sufficient in other respects,

p. 88

heeáuse.enough appears, from the facts in the case, to show that jt cannot affect the right of the plaintiff to x’ecover.

Judgment must be entered for. the plaintiff..