Kellogg vs. J. R. Olmsted and C. L. Olmsted

Kellogg vs. J. R. Olmsted and C. L. Olmsted. In a case simply between debtor and creditor, the debt being undisputed and due, and drawing interest, no valid agreement can be made, by parol, to postpone to a future day the payment of the debt. Yet it may be postponed by a new written contract. A parol agreement between the payee of a promissory note and the makers, after the same becomes due, that in consideration that the makers will keep the principal sum specified in the note, until a future day mentioned, and pay the same with interest on that day, the payee will extend the time of payment of the principal until the day mentioned, is not valid, either upon the.principles applicable to cases of forbearance to sue, or on the ground of accord and satisfaction. APPEAL by the defendant, from a judgment entered upon the decision and report of a referee. The action was upon a promissory note made by the defendants and one J. J. McPherson, by which they promised, one year from date, to pay Geo. R. D. Colvil or bearer $600 with interest semi-annually. The note was dated Oct. 1855. It was transferred to the plaintiff after it was due. The semi-annual interest had been paid. This action was commenced Oct. 30,-1856. McPherson died after action commenced. He and Charles L. Olmsted signed the note, each as surety. The defense set up in the answer was that on the 8th day of Oct. 1856, after the note became due and while Oolvil, the payee, was the owner of the note, it was agreed between Oolvil and the defendant John R. Olmsted, on behalf of the defendants, that in consideration that the defendants would keep the principal sum of the said note until the first day of April, 1857, and pay the same with interest on that day, he, Colvil, would extend the time of payment of the principal of the note until the 1st day of April, 1857; that the defendants assented to said proposition, and ,agreed to and with Oolvil to keep the principal of the note until the 1st day of April, 1857, and to pay the same, with interest, on that day. Averment that the .plaintiff had full knowledge of this agreement, and took the note subject to it. The defendants offered to prove the defense set forth in the answer, and the referee, upon objection, excluded the evidence, and the defendants excepted. Judgment was perfected, and the defendants appealed to the general term. Bartow & Olmsted, for the appellants, cited 1 Parsons on Cont. 373, 4, 5; 2 Kent’s Com. 585; Trustees of Hamilton College v. Stewart, 1 Comst. 581; Comyn on Cont. 27. C. Danforth, for the plaintiff, cited Miller v. Holbrook, 1 Wend. 317; Gibson v. Renne, 19 Wend. 389; 1 Chit. on Cont. 33. [MAJORITY — By the Court, Marvin, J.] By the Court, Marvin, J. The defendants’ counsel claim that there was an agreement by which the defendants agreed to keep the principal of the note until the first day of April following, and to pay interest therefor. And they argue that such an agreement is valid, and founded upon a good consideration; that the defendants could not have tendered the money, or paid the debt, until the day named should arrive. In other words, that the payee of the note would be under no legal obligation to accept payment until the day named should arrive; and that this constituted a good consideration for the promise of the payee, Oolvil, “to extend the time of payment of the principal of said note.” If this position is sound it must rest, I think, upon the principle applicable to accord and satisfaction. It cannot rest upon principles applicable to forbearance of payment. It is well settled that an agreement to postpone the day of payment of a part of a debt due, in consideration of the debtor’s presently paying a portion of the debt, is not valid, and upon the ground that there is no consideration for such agreement. (Miller v. Holbrook, 1 Wend. 317. Gibson v. Renne, 19 id. 389.) I am not aware that it has ever been suggested, before this case, that if the debtor promises to retain the money, and pay interest, this will constitute a good consideration for the promise to postpone the day of payment; and yet, in most of the cases, the debt postponed would be on interest. If the creditor indulges his debtor, without any agreement, and the debtor neglects to pay the note, the principal will continue to earn interest. The creditor will be in no better condition by making an agreement to forbear payment, than he would be without such an agreement, unless it be an object to him to continue the debt on interest and to compel the debtor to keep the money. In my opinion such an agreement would not be valid upon the principles applicable to forbearance to sue. The creditor is to derive no benefit beyond that which he would derive by simply neglecting to collect the debt; the debtor also neglecting to pay. He gets no additional security. His debt is not disputed. It is confessed; and there is nothing to compromise. In my opinion, in a case simply between the debtor and creditor, the debt being undisputed and due, and drawing interest, no valid agreement can be made, by parol, to postpone to a future day the payment of the debt. The debtor’s promising to pay interest will be no more than the law will compel him to do, without the promise. If he agrees to pay more than the interest, for the1 forbearance of the debt, the agreement will be void for usury. (Crane v. Subbell, 7 Paige, 413. 1 Com. 274.) The parties may postpone the time of payment by making a new written contract. The note past due may be taken up, and another note given, payable at a future day, the payment of which cannot be enforced until the day of payment named shall arrive. It would be an unsafe and dangerous rule, to hold that the time for the payment of a note may be enlarged upon such an agreement as is set forth in the answer in this case, to be proved by verbal evidence. It would open a door to controversies, frauds and false swearing. I have said if the agreement can be upheld it must be upon the principles of accord and satisfaction. That is, all remedy upon the note was gone when the agreement was made, and the right of Colvil depended entirely upon the new agreement. It was not argued, and cannot he, successfully, that there was any accord and satisfaction. There are cases where the note of a third person is taken in satisfaction of a debt, and a defense may he set up by way of accord and satisfaction. (Booth v. Smith, 3 Wend. 66. 20 John. 76. 19 Wend. 390.) But there can be no accord and satisfaction when one does or agrees to do what by law he is bound to do. [Orleans General Term, September 13, 1858. Grover, Marvin and Davis, Justices.] I think the referee did not err, and the judgment should be affirmed.