Gowing v. Thomas
Supreme Court of New Hampshire
Assumpsit, by an indorsee against an indorser of a promissory note, of which one R. F. Carter was the maker. The defendant pleaded, in substance (fifth plea), that after making the promise as indorser, to wit, on etc. at etc., Carter became insolvent; that the plaintiff promised the defendant if he would organize a stock company for the purpose of owning Carter’s property, and would raise money sufficient for that purpose, and obtain for the plaintiff the right to take stock…
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Assumpsit, by an indorsee against an indorser of a promissory note, of which one R. F. Carter was the maker. The defendant pleaded, in substance (fifth plea), that after making the promise as indorser, to wit, on etc. at etc., Carter became insolvent; that the plaintiff promised the defendant if he would organize a stock company for the purpose of owning Carter’s property, and would raise money sufficient for that purpose, and obtain for the plaintiff the right to take stock in the company, he would take stock to the amount of the note in suit and discharge his indebtedness against Carter and…
1Opinion of the CourtSmith, J.
The defence pleaded is accord and satisfaction. Both pleas show that the new contract pleaded was executory. The averment is, that if 'the defendant should perform his promise the plaintiff would discharge his claim. The averment in the fifth plea, “that in pursuance of said agreement, the plaintiff, in manner and form aforesaid, did then and there relinquish and abandon his claim against the defendant,” is the statement of the defendant’s conclusion of law, and not the averment of a fact. There is no averment in either plea that at the time of the making of the new contract the plaintiff…
2Cited by4 opinions
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