Degroot v. Blake
New York Supreme Court
The declaration in this case (which was an action of assumpsit,) contained a variety of counts, and, among them three, each of which was on a promissory note indorsed by the defendant, and contained a special averment excusing presentment to the maker and notice to the indorser, thus: “ that the plaintiff, when the note became due and payable, was ready and willing to present the same, and demand payment, but the defendant wholly dispensed with and discharged the said…
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The declaration in this case (which was an action of assumpsit,) contained a variety of counts, and, among them three, each of which was on a promissory note indorsed by the defendant, and contained a special averment excusing presentment to the maker and notice to the indorser, thus: “ that the plaintiff, when the note became due and payable, was ready and willing to present the same, and demand payment, but the defendant wholly dispensed with and discharged the said plaintiff from the presentment thereof to the maker for payment,” &c. To prove this averment, the plaintiff offered to show…
1Opinion of the CourtEdwards, J.
The testimony is inadmissible. The contract of the defendant, by his indorsement of these notes, Avas that he would pay them, provided the makers failed to pay upon presentment, at maturity; and provided, also, that, in such event, the holder gave him immediate notice. This contract, for the purposes of this question, must be considered as written over the indorsement of the defendant. The parol testimony, therefore, goes to show a simultaneous contract directly at variance with the written engagement. It would be dangerous, in the extreme, to receive such testimony.(1)
Slosson, for plaintiff.
A…
2Cases cited2 opinions
- Thompson v. KetchamNew York Supreme Court · 1811
- Budd v. MalburnNew York Supreme Court · 1823