Frost and Smith against Everett

Frost and Smith against Everett. A parol agreement to enlarge the time of tho delivery ' of articles, promised in writing to be delivered on demand ; made at the time of, or before executing the written contract, though repeated immediately afterwards, is no defence to an action on tho contract brought before the time to which the parol agreement related. Such parol agreement is void, though for a valuable consideration. A valid agreement to enlarge the time of performing a contract may be given in evidence under the general issue. But if a plea or notice were necessary, the defendant is not confined to the precise day at which he states tho agreement to enlarge, to have oeen made. Assumpsit on an agreement in writing, dated June 20th, 1820, by which the defendant, for value received, promised to pay the plaintiffs on demand, 448 gallons of whiskey; tried at the Onondaga circuit, July 1823, before Throop, C. Judge. The defendant set up, as a defence, and proved, though the evidence was objected to, that before the written agreement was executed, he had become surety with the plaintiffs for a considerable debt due by them inNew York, which had since, and after the assignment of the agreement, been collected of him; that when the agreement was given, he objected, on account of his being holden to pay debts for the plaintiffs in New York ; but they both replied that they would not dispose of the agreement or call for the whiskey, till the New York debts were settled by them. The defendant then signed the agreement; and, after signing it, they repeated the declaration; but afterwards, being insolvent, assigned the agreement to T. H. & A. Leggett, who demanded the whiskey before the defendant had paid the plaintiffs’ notes. The defendant had given notice with the general issue, that he would prove the agreement to enlarge the time ; but stated that it was made on the 1st November, 1820, without a videlicet. The judge directed the jury to find for the defendant, on the ground of the parol agreement ; which they did accordingly. J. A. Collien moved for a new trial. He cited 4 John. 450, and note to the new ed.; 8 John. 189; 1 Phil. Ev. 433, 437 ; 1 Cowen, 249. D. Cady, contra, cited 20 John. 361; 1 John. Cas. 22; 3 John. 528, 287; 1 Cowen, 250; 1 Chit. Pl. 258, 472 ; 2 Str. 806 ; 10 Mod. 313; 1 Cowen, 674; 13 John. 56; 15 John. 231; 4 Taunt. 163. [MAJORITY — Curia, per Sutherland, J.] Curia, per Sutherland, J. The agreement on the part of the plaintiffs, not to dispose cf, or call for the payment of the note on which this suit was brought, until the NewYorlc debts, for the payment of which the defendant had become security for the plaintiffs, were settled, was made at the time of giving the note. It was not a subsequent agreement to enlarge the time of payment. The defendant objected to giving the note, on the groun d that he was holden for the New York debts ; the plaintiffs then declared that they would not dispose of, or call for payment of this note, until the New York debts were settled ; upon which the defendant signed the note; and after he had signed and delivered it, the plaintiffs reiterated the declaration that they would not dispose of, or call for payment of the note. This was all one transaction. The agreement to enlarge the time of payment, was, in fact, made before the note was given. The subsequent declarations of the plaintiff, made during the same conversation, was merely an acknowledgment, that such was the agreement made between the parties. The evidence should have been rejected. (1 John. Cas. 22. 3 John. 528. 1 Cowen, 250, and the cases there cited.) The defendant was not confined to the precise day stated in the notice. The day was not material, provided it was subsequent to the original contract.' ■ (1 Chit. Pl. 258.) Evidence of an enlargement of the time of performance is admissible under the general issue. It shows that the plaintiffs, at the time of suit brought, had no cause of action. (1 Chit. Pl. 472. 13 John. 56. 15 John. 231. 4 Taunt. 163. 1 John. Cas. 22. 3 John. 528.) A new trial must be granted on the first ground. New trial granted.