Opinion
April 20, 1906.
John F. Bradner, for the appellant.
Thomas Watts [ Abram F. Servin with him on the brief], for the respondents.
This action is upon the following note:
"$850.00 MIDDLETOWN, N.Y., July 1 st, 1893.
"On demand we or either of us promise to pay to the order of Leander Brink, Eight Hundred and Fifty Dollars at his office. Value received. With interest from date.
"W.D. STRATTON, "E.A. BROWN, "COREY CO."
Of the three makers sued, Stratton and Brown answered. The learned county judge restricted them to their defense of payment. This was based upon the contention that the plaintiff expressly agreed to accept in payment of the note in suit the following note, made by Corey Co., who were of the makers of the first note:
"$850.00 MIDDLETOWN, N.Y., Aug. 4 th, 1893.
"Three (3) months after date we promise to pay to the order of John E. Corwin, Eight Hundred Fifty Dollars. Payable at the Banking House of John E. Corwin, Middletown, N.Y., for value received. With interest.
COREY CO. "(Indorsed):
"LEANDER BRINK."
The plaintiff indorsed and discounted the second note, but it was not paid by Corey Co. The question of the express agreement between the plaintiff and Corey Co. was submitted to the jury under instructions that if they found it was made and the note given and accepted thereunder there was no liability of the defendants Stratton and Brown upon the note in suit. The jury gave its verdict for the defendants. We think that the evidence is sufficient to sustain the verdict. The learned counsel for the appellant now first raises the question that even if this agreement were made the verdict cannot stand in law. Notwithstanding that the question is first raised here I shall consider it. The argument of the learned counsel for the appellant is that the agreement was nudum pactum inasmuch as one of several debtors simply gave his note for the note which he executed with others. This contention is accompanied with the citation of cases. Many of them are enumerated and discussed in the note to the text of Parsons on Notes and Bills (Vol. 2, p. 159). The plaintiff before or on the day of the giving of the second note could have enforced the first note. Acceptance by express agreement of the second note in payment of the first note suspended the plaintiff's power to enforce the debt for three months from the date of the second note. I think that this is sufficient to support the express agreement. (See Pillans v. Van Mierop, 3 Burr. 1663, 1672, 1673, approved in Seaman v. Seaman, 12 Wend. 381, which is cited in turn in 2 Kent's Com. [14th ed.] 465; Whelan v. Swain, 132 Cal. 390.)
The plaintiff, in payment of the first note which was then due as a demand note, took the second note whereby he forebore to enforce the debt for three months from its date. This was a different instrument from that which he held. (See Thompson v. Percival, 5 Barn. Ad. 933.)
Moreover, in Sheehy v. Mandeville (6 Cranch, 264) MARSHALL, Ch. J., says: "That a note, without a special contract, would not, of itself, discharge the original cause of action, is not denied. But it is insisted that if, by express agreement, the note is received as payment, it satisfies the original contract, and the party receiving it must take his remedy on it. This principle appears to be well settled. The note of one of the parties or of a third person may, by agreement, be received in payment. The doctrine of nudum pactum does not apply to such a case; for a man may, if such be his will, discharge his debtor without any consideration." (See, too, in comment Arnold v. Camp, 12 Johns. 410, and Waydell v. Luer, 3 Den. 419.) We cannot inquire into the quantum of the consideration. ( Oakley v. Boorman, 21 Wend. 588; Luddington v. Bell, 77 N.Y. 141.) In Bates v. Rosekrans ( 37 N.Y. 410) the court say: "That the giving of a new note by one of two joint and several makers, intended as a provision for the payment of a former note, not agreed to be taken in payment, and not in fact paid, constitutes no defense to an action upon the original note, is well settled. The principle is quite familiar and of frequent occurrence. ( Highland Bank v. Dubois, 5 Denio, 558; Cole v. Sackett, 1 Hill, 516; Smith v. Rogers, 17 Johns. 340.)"
This is recognition of the principle invoked by the defendants.
I advise affirmance of the judgment and order, with costs.
HIRSCHBERG, P.J., HOOKER, RICH and MILLER, JJ., concurred.
Judgment and order of the County Court of Orange county affirmed, with costs.