Conaway v. Dorst

20 Ind. 426

• Court: Indiana Supreme Court
• Decided: May 15, 1863
• Status: Published

Opinion

Hanna, J.

Suit on promissory notes. Answer, among other matters, that before the commencement of said suit, the defendant delivered to the plaintiffs a large amount, &c., of promissory notes on solvent persons, to be collected by said plaintiffs, and applied in discharge of said notes sued on, and that it 'was then agreed that, in consideration thereof, said plaintiffs were not in the meantime to sue upon said notes, &c.

A demurrer was sustained to this paragraph of the answer, which ruling, it is insisted, was, upon the authority of Rigsbee v. Bowler, 17 Ind. 167, erroneous.

In that case, the promise to give time, &c., was based upon an agreement made before the maturity of the note. Here it is not shown whether it was made before or after such maturity. We can not presume that it was made before that period, in view of the well-settled rules that maintain in the construction of pleadings. It has been often decided by this Court, that such an arrangement, after the maturity or breach of the original contract, can not be pleaded in bar of a suit upon such contract, although it might, of itself, be the foundation of an action.

Per Curiam.

The judgment is affirmed, with 3 per cent, damages and costs.