Majority
p. 90Edward Stack, Resp’t, v. Charles P. Weatherwax, App’lt. (Supreme Court, General Term, Third Department, Filed May 27, 1889.)
Headnote
Promissorry notes—What sotetcient consideration.In an action on a promissory note, the plaintiff, at defendant’s request executed and delivered to defendant a satisfaction piece of a certain judgment recovered by plaintiff, against a third person. Held, that this was a consideration, if the parties so agreed, for the defendant’s note.
Appeal from a judgment entered on a verdict directed by the court, and from an order denying a motion for a new trial.
This action was brought on a promissory note made and delivered to the plaintiff by the defendant.
The defendant admits the making and delivery of the note, but alleges that the same was made without consideration therefor, and that defendant executed the same under duress.
The action was tried at the Montgomery county circuit court, before Justice Tappan and a jury, June 11, 1888. At the close of the evidence the court directed the jury to find a verdict for the plaintiff, and a judgment was entered thereon for the recovery and costs, amounting to $170.65.
It appears from the evidence that the plaintiff had a judgment against Ostrom Van Loon, the defendant’s son-in-law, on which there was due for principal, interest and costs, $103; that the plaintiff had tried to collect the judgment by execution; that the defendant came to the plaintiff and stated that if he would satisfy the judgment against his son-in-law, Van Loon, he would give plaintiff his note, payable in six months, for eighty dollars, in payment of the judgment; that they wept to the law office of Mr. Reynolds
p. 91
at Amsterdam, who, at the request o£ the parties, drew the note in suit and a satisfaction of the Van Loon judgment; that the defendant then signed the note, delivered it to the plaintiff, and the plaintiff signed and acknowledged the satisfaction of the judgment and delivered it to the defendant, who handed it to Mr. Reynolds and requested him to get the Montgomery county clerk’s certificate attached, showing that he, Reynolds, was a notary. The clerk’s certificate was obtained.
Edward J. Maxwell, for app’lt; Louis H. Reynolds, for resp’t.
There was no sufficient evidence of duress to go to the jury.
The defense of want of consideration was not sustained. Contemporaneously with the execution of the note, the plaintiff executed, acknowledged and left for the defendant a satisfaction piece of the judgment recovered by the plaintiff against Van Loon. Whether Van Loon was solvent or not at that time, this was a consideration, if the parties so agreed, for the defendant’s note.
Judgment affirmed, with costs.