Berry v. Bates

2 Blackf. 118, 1828 Ind. LEXIS 1

• Court: Indiana Supreme Court
• Decided: May 5, 1828
• Status: Published

Opinion

Scott, J.

The defence set up on the trial below was, that on the third of May, 1827, after the note on which suit was brought had become due, Berry paid Bates a certain other debt of 30 dollars and upwards, and 2 dollars and 66 cents in part discharge, of the note on which suit was brought; and Bates then agreed, that he would not urge the payment of the balance of the note until Christmas following; and pledged his word and honour to that effect. The Circuit Court very correctly decided that Bates was not legally hound by that promise.

Wick, for the plaintiff. Fletcher and Brown, for the defendant.

Even an agreement under seal, not to sue for a limited time, cannot be pleaded in bar as a release. The party, in that case, must resort to his action of covenant as his only remedy. 2 Salk. 573.-5 Bac. Abr. 683.—1 Esp. N. P. 244

(1). The reason of the rule applies more strongly in this case, where a mere verbal promise is set up to control a written instrument for the payment of money. The payment of another debt, and a part of that on which suit was brought, after the whole had become due, created no legal consideration for the promise of forbearance;. and the promise being made without consideration was not legally binding. The plaintiff’s pledge of honour for the performance of his promise does not alter the case, in a legal sense. He who relies on such security, must, when the pledge fails, abide the consequences; the law will not help him out.

Per Curiam.

The judgment is affirmed, with 5'per cent, damages and costs.

Vide Reed v. Shaw, Vol. 1. of these Rep. 245, and note.