Crawford v. Millspaugh

13 Johns. 87

Opinion

Per Curiam.

It is evident, from the facts in this' case, that. the writing set up by the defendant, was made and executed 'some time after the note had become due; indeed, after the commencement of this action, and, consequently, at a period when the defendant was liable for the amount as endorser, so that, if this note, in the hands of the plaintiff, as endorsee, could even be considered, or treated, as a parol agreement, it appears that the promise, on the part of the endorser, was broken, and could not be discharged by a new agreement, without satisfaction, unless it be by deed. The writing upon which this defence is grounded, is not under seal, and. is .without consideration; it must be deemed a mere nudum pactum. (Harrison v. Close, 2 Johns. Rep. 450.) It is, therefore, unnecessary to advert to the conditions showing the intention of the party, as stated in the writing itself, to decide whether it could be controlled by such condition, admitting it to be sufficient in other respects, heeáuse.enough appears, from the facts in the case, to show that jt cannot affect the right of the plaintiff to x’ecover.

Judgment must be entered for. the plaintiff..