In Parmelee v. Thompson (45 N.Y. 58) one of the makers of a promissory note after maturity paid to the payee a sum equal to the amount due thereon and took possession of the note.Summary of this case from Olmstead v. Latimer
Submitted February 17th
Decided February 21st, 1871
Holmes Thompson, for appellant.
John H. White, for respondent.
It is competent for the parties, by a parol agreement, to enlarge the time of performance of a simple contract, and the time of payment of the note in suit might have been extended by such agreement made upon a sufficient consideration. ( Keating v. Price, 1 Johns. Ca., 22; Miller v. Holbrook, 1 Wend. R., 317.) But a promise to extend the time of payment, unless founded on a good consideration, is void. A payment of a part of the debt, or the interest already accrued, or promise to pay interest for the future, is not a sufficient consideration to support such promise. ( Reynolds v. Ward, 5 Wend. R., 502.)
Neither will the giving a new obligation with additional security for a part of the debt avail as a consideration for an agreement to extend the time of payment of the residue. ( Gibson v. Renne, 19 Wend. R., 389.) This court, in Kellogg v. Olmsted ( 25 N.Y., 189), decided that a promise by a debtor that he would not pay a debt then past due until a future day named, and that he would then pay the same with interest, was not a good consideration for the promise of the creditor to extend the time for payment. If the only consideration for the promise of the creditor is the performance by the debtor or a promise to perform some act which the latter is legally bound to perform, the promise is without consideration.
"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." (Per BRONSON, J., Gibson v. Renne, supra.)
The payment of the costs of the former action upon the note was but the discharge by the defendant of a legal obligation. The right of the plaintiff to recover in the action was not disputed, and his right to the costs of the action were as absolute and certain as his right to the debt, to recover which the action was brought.
The defendant lost nothing and the holder of the note acquired nothing by the arrangement. There was then no valid agreement to extend the time for the payment of the note.
The questions of fact affecting the title of the plaintiff to the note were properly submitted to the jury, and this court cannot review the verdict. The judgment must be affirmed.
All the judges concurring except the Chief Judge, who did not sit, and GROVER, J., not voting.