Miller v. Holbrook
New York Supreme Court
Motion for judgment for frivolousness of bill of excep- „ J ° V 1 tions. The declaration was in assumpsit on a promissory note for $1093, and also contained a count for goods sold and delivered. Plea, the general issue.
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Motion for judgment for frivolousness of bill of excep- „ J ° V 1 tions. The declaration was in assumpsit on a promissory note for $1093, and also contained a count for goods sold and delivered. Plea, the general issue. On the trial of the cause, after proof of the making of the note, the defendant offered to shew that previous to the note becoming due, it was agreed by the plaintiffs to extend the time of payment of the monies due them, in consideration of the defendant agreeing to pay $200 when the note should fall due, and giving his notes for the balance; that the defendant, when the note…
1Opinion of the Court
By the Court,
Sutherland, J.
The bill of exceptions is frivolous, and the plaintiffs are entitled to judgment. In Keating and Price, the defendant was allowed to avail himself of an agreement, such as is set up here; but it is to be presumed, that in that case it appeared that the promise to enlarge the time of performance, was founded on a good and sufficient consideration. None such existed in this case. The only consideration was the promise of the defendant to pay a portion of a greater sum when it should fall due, when already, he was under a legal obligation to pay the whole.
2Cited by12 opinions
- Olmstead v. . LatimerNew York Court of Appeals · 1899
- Kellogg v. . OlmstedNew York Court of Appeals · 1862
- Fitzgerald v. SmithIndiana Supreme Court · 1849
- Farrington v. BullardNew York Supreme Court · 1863
- Wiswall v. McGowanNew York Court of Chancery · 1839
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