Opinion
03-12-1886
MEASURALL v. PEARCE and others.
S. M. Schenck, for complainant. S. M. Dickinson, for defendant Pearce.
S. M. Schenck, for complainant.
S. M. Dickinson, for defendant Pearce.
BIRD, V. C. The bill is filed to foreclose two mortgages which became due on the first day of May next before the bill was filed. Themortgagor in his answer says that he paid the interest on that day, and that then the complainant promised to extend the time of payment of said mortgages for one year; that is, until the first clay of May, 1886. Motion is made to strike out all that portion of the answer which relates to the extention of time, because not in writing, and without consideration. The question is whether a verbal promise, without any consideration whatever, to extend the time of the payment of a sealed instrument can be enforced or is a good defense in a court of equity. In French, v. Griffin, 18 N. J. Eq. 279, the defense to the suit was that, at the time of the giving of the mortgage, the complainant had agreed to take payment in work or materials. Chancellor Zabriskie said:
"If such a bargain had been made either before or after the execution of the papers, it could not affect this case. If made before, it would be considered as changed and abandoned by the mortgage being given for payment in money, and not in work; if made afterwards, it could have no effect, because without consideration, and because the effect of a sealed instrument cannot, even in equity, be changed by a parol contract."
The same chancellor, in Tompkins v. Tompkins, 21 N. J. Eq. 339, said: "It is well settled that the time of performance of the stipulations of a sealed contract may be changed by parol." Citing Cox v. Bennet, 13 N. J. Law, 171; King v. Morford, 1 N. J. Eq. 280; Vanhouten v. McCarty, 4 N. J. Eq. 141. The cases cited seem to sustain fully the latter declaration of the chancellor. Other cases are found to the same effect: Stryker v. Vanderbilt, 25 N. J. Law, 495, 496; Wilson v. Bird, 28 N. J. Eq. 352; Bell v. Romaine, 30 N. J. Eq. 28. Mr. Parsons, in his work on Notes and Bills, says that in New York and New Hampshire an oral agreement to defer the time of payment, being made by the parties after the transfer, and on full legal consideration, is valid and binding; but I think several of the cases to which he refers do not show such full legal consideration. Volume 2, p. 529. The last reported case before the court of last resort in New York (Kane v. Cortesy, 2 N. E. Rep. 877) seems to have called forth a distinct expression of opinion upon this subject. Although there was a collateral undertaking in writing, I cannot discover that that fact influenced the court when speaking of the subject-matter we are now considering. I quote:
"The parol evidence as to the agreement for the extension of time does not come under the ban of the rule which prohibits parol evidence to explain, vary, or contradict written instruments. It does not contradict or vary the real-estate mortgage. That was past due, and the time for its payment could be extended by any valid agreement."
In Dodge v. Crandall, 30 N. Y. 307, the court, in expressing its views, declared it was well settled that after the breach of a sealed agreement it may be modified in any respect, or wholly rescinded, by an executed parol agreement founded upon a sufficient consideration. This case, like the one first above recited, and like Parsons in his work on Bills, requires some consideration for the waiver or extension; and many of the cases, when examined, will show some consideration as actually moving the party making the waiver or extending the time. But where the questionof payment is the only point in controversy, the majority of the cases in New Jersey, and elsewhere in this country, seem to have been decided without reference to the question of consideration, and to rest solely upon the promise of the complainant to give time; and that, too, whether the defendant is under any obligations to suspend payment during the period of the alleged extension or not.
The allegation in the answer in the case before me is that the complainant agreed to and with the defendant to forbear the payment of the said bonds and mortgages for one year, without any allegation that he requested him so to do, or promised that he would not make the payment before the expiration of the year. Certainly here is a want of that mutuality always regarded as absolutely essential to the existence of a binding contract. Clearly, if there be nothing more in the case than the answer discloses, the defendant was at liberty to discharge his obligations at any moment by payment. This being so, can it be possible that the complainant is bound by a simple promise on his part? It seems to me not. The defendant gave nothing for the promise,—not even a promise that he would not the next day tender the money. Therefore I will advise an order striking out all that portion of the answer which alleges there was an agreement to extend the time of payment, with costs.