Henry W. Sage et al., Respondents, v. Henry Volkening, Appellant

Henry W. Sage et al., Respondents, v. Henry Volkening, Appellant. (Argued January 13, 1874; decided May term, 1874.) This was an action upon a promissory note; the defence was that, by mistake, the note was given for too much. Defendant having become embarrassed, in consequence of the destruction of his premises by fire, procured from his creditors, among whom was plaintiff, an agreement to extend the time of payment of their respective claims — one-half eight months, one-half sixteen months; plaintiffs to give their notes in accordance with such agreement. Hothing was contained therein as to interest. Plaintiffs presented to defendant two notes, in which the interest was added to the principal; these were signed by the latter, and one of which is the note in suit. One of the plaintiffs testified, in substance, that when the agreement was executed, defendant insisted that it should specify that he was not to pay interest, to which he objected ; and that defendant then agreed to pay interest, and that thereupon he drew the notes including interest. The court, without considering the question whether the agreement included interest, held, that as it appeared there was no mistake in fact on the part of the plaintiff, the defence was not sustained, and judgment for the full amount of the note was proper. Nelson Smith for the appellant. Samuel Hand for the respondents. [MAJORITY — Gray, C.,] Gray, C., reads for affirmance. All concur. Judgment affirmed.