Bridge v. Tierman

36 Mo. 439

• Court: Supreme Court of Missouri
• Decided: October 15, 1865
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

In Atwood v. Lewis (6 Mo. 392) and Bircher v. Payne (7 Mo. 402) this court decided that where a person gives his promissory note payable at a certain time, and the payee 'ex-excutes an instrument of writing that at the maturity of the note, on the happening of certain contingencies, he will extend the time of payment and forbear the collection of the money, that the happening of the events or contingencies mentioned in the writing will be no defence to the prosecution of a suit founded on the note; but that if the defendant is injured by the breach of covenant, he must resort to his action for damages.

The only thing that distinguishes those cases from the present one is, that the agreements that were there sought to be set up in defence were in writing, whereas it appears here that the agreement or understanding between the parties was merely verbal.

The court committed no error in giving judgment notwithstanding the answer, as, for aught that appears in the record, the defence would have been wholly inadmissible in evidence. No exceptions were taken or saved to the action of the court in overruling the motion for a continuance, and there is no error apparent' on the record for us to notice.

The judgment will be affirmed.

Judge Holmes concurs ; Judge Lovelace absent.