Deming v. Norton

1 Kirby 397

Opinion

By the whole Court.

By tbe terms of tbe promise, it was incumbent on tbe plaintiff to use proper and legal endeavors to recover tbe money of Warner, before tbe defendant could be liable; — but it appears by tbe verdict, that tbe plaintiff, for a valuable consideration, agreed to give further time of payment to Warner, and thereby took tbe risk of Warner’s ability to pay upon himself, which legally exonerated tbe defendant from bis engagement.— Therefore, tbe issue found by tbe jury was material, and the only material point in tbe pleadings.

So judgment was for tbe defendant.