Hilderbrandt v. Fallot

The plaintiff loaned the defendant several sums of money, some of which was returned; and, upon an adjustment of their accounts, there remained due to the plaintiff $400, for which the defendant gave the plaintiff his promissory note. The note was dated April 15, 1894, but both parties conceded on the trial that the date should be 1904, and, as originally drawn, “due .no time.” The following September the defendant struck out the words “no time,” and wrote instead “May 1st, 1905.” He claims the time was extended by agreement. This the plaintiff denies. In any event, there was no consideration for the extension. The plaintiff sued the defendant in this action to recover for money loaned, disregarding the note. The defendant pleaded the outstanding note in the hands of the plaintiff, and that it was not due, and that the action was prematurely brought. Such was the issue. The trial court gave judgment for the plaintiff, and the defendant appeals.

It is the well-settled law of the state that the taking by a creditor of the debtor’s note for the existing indebtedness does not merge or extinguish the indebtedness. The note is simply evidence of the debt, and when default is made in the payment the creditor may sue upon the original demand, and bring the note into court, to be delivered up on the trial. This is what was done in this case, and the note in question is a part of the record. Even admitting that the plaintiff promised to extend the time of payment of the note to May 1, 1905, as claimed by the defendant, such promise was not binding upon the plaintiff, for the reason that the promise was not supported by sufficient consideration. In the case of Parmelee v. Thompson, 45 N. Y. 58 , 6 Am. Rep. 33 , the court says, “A prom

It follows that the judgment , must be affirmed, with costs. All concur.