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Gibson v. Renne

19 Wend. 389 Court N.Y. Sup. Ct. English

Delivered by Bronson, J.

Contents

Majority

p. 389
Gibson vs. Renne and others.
NEW-YORK,
May, 1838.

Headnote

A note made by a debtor, his sureties, and a third person, in part payment of an existing liability, is not a sufficient consideration to support an agreement to give day of payment for the residue made without the consent of the sureties ; and consequently can not be set up in bar of the action or in discharge of the sureties.
This was an action of debt, tried at the Essex circuit in June, 1833, before the Hon. Esek Cowen, then one of the circuit judges.
The suit was brought upon a bond executed by Renne and two other persons as his sureties, conditioned to pay to the plaintiff such sum as should be found due to him by arbitration or otherwise in reference to a partnership which had existed between the plaintiff and Renne. There subsequently was a submission of the matters in controversy to arbitrators, who awarded that Renne should pay to the plaintiff the sum of $970. The award was made on the 28th December, 1829; by the bond on which the action was brought the sum which should be found to be paid by Renne if any, was to be paid within thirty days after the sum should be ascertained. On the 10th April, 1830, the defendants delivered to the plaintiffs a promissory note signed by themselves and by one C. F. Hammond, for $650, payable in one year, which the plaintiff received and agreed to apply on the award. The defendants offered to prove that the above note was procured and delivered, under an agreement made in April, 1830, between the plaintiff and Renne without the consent of the sureties ; that the same should be procured and delivered to the plaintiff inv part payment of the award, that the plaintiff should wait for the residue of the sum awarded the term of 15 months from the time of the agreement, and that in the meantime, the subject matter of the award should be re-investigated; that the plaintiff subsequently refused to re-investigate the matter and brought his action before the expiration of the 15 months. The plaintiff’s counsel objected to the evidence -
p. 390
thus offered to be given, and it was rejected by the judge. The plaintiff had a verdict, and upon the ground of the rejection of the evidence offered, (and other grounds not here „ noticed) the defendants asked for a new trial.
M. T. Reynolds, for the defendant.
8. Stevens, for the plaintiff.

By the Court,

The alleged agreement to wait fifteen months was not founded on a sufficient consideration. The delivery' of a note or obligation of a third person may sometimes be set up by way of accord and satisfaction, Booth v. Smith, 3 Wendell, 66, Boyd v. Hitchcock, 20 Johns. R. 76; but here the note of the defendants and Hammond was to be received in part payment of the award. It surely can be no better consideration than the payment of so much money by the defendants would have been; and then how does the question stand ? The debt was due; the. debtor says to the creditor, you promised in consideration that I would discharge in part an existing and present duty, that you would give further time for the satisfaction of the residue. I cannot understand how this makes a good consideration for a promise. The discharge of a legal obligation by the debtor to the creditor, cannot be such an injury to the one, or benefit to the other, as will make what the law calls a sufficient consideration for an agreement.

New trial denied.