Rigsbee v. Bowler

17 Ind. 167, 1861 Ind. LEXIS 338

• Court: Indiana Supreme Court
• Decided: November 30, 1861
• Status: Published

Opinion

Perkins, J.

Bowler sued Rignbee upon a promissory note made by the latter to one Carney, by whom it was indorsed to one Corey, who indorsed it to the plaintiff, Bowler.

The writ, in the cause, was made returnable on the second day of the next term succeeding its issue, and was served ten days before the first day of the term.

Had the writ been returnable in the Circuit Court, it would have been regular. Perk. Prac. 147. But the Common Pleas act of 1859, requires writs in that Court to -be returnable on the first day of a term. Acts 1859, p. 89.

The naming of a wrong day, in the right term, in the writ, was, however, a mere clerical error, which worked no prejudice. The defendant knew the law, and knew that by it the writ was returnable on the first day of the term. White Water Valley, &c. Co. v. Henderson, 3 Ind. 3; Davidson v. Alvord, id. 1; Ziegenhager v. Doe, 1 Ind. 296. Had the writ been returnable to a wrong term, or run past a term, it would have been void. Carey v. Butler, 11 Ind. 391. Por a modification of this rule in attachment cases, see Will v. Whitney, 15 Ind. 194.

Hie note on which this suit was brought, was not payable at bank; was given in 1855, and was payable December 25, 1859. The defendant answered to the suit, that in 1856, after the giving of the note sued on, and before he had any notice of its assignment, he became indebted to the payee of it in the further sum of three hundred dollars, due at a future day, and the said payee agreed that if the defendant would then pay to Mm the said three hundred dollars, before it fell due, he would extend the time of payment of the note now sued on, till December 25, 1860. And the defendant avers that, in pursuance of said agreement, and as the consideration of such extension of time, he did then and there, and before the same was due, pay to said Camay, the payee of the note, said three hundred dollars, &e.

The Court sustained a demurrer to this answer. The Court erred.

It was held by the Supreme Court of Ohio, in Peck v. Beckwith, 10 Ohio St. Rep. 497, that when the payee and holder of a promissory note, before its maturity, agrees with the maker to give further specified time for its payment, in consideration of a sum of money then and there paid him by the maker, such agreement is a valid contract, and may be set up as a temporary bar in an action brought, before the expiration of such further time, against the maker, by an assignee who acquired the note after maturity, or with notice. In the case at bar, the new contract is shown to have been made before breach. See Billingsley v. Stratton, 11 Ind. 396, and cases cited. Payment of a debt before it is due, is a good consideration for a promise. See Fitzgerald v. Smith, 1 Ind. 310, 314. A subsequent verbal agreement, changing a previous written agreement, may be valid, and may be proved by parol, (Ind. Dig., p. 291,) in a case where the original contract might have been made by parol. Fry on Specific Performances, side p. 303. It is held in Lawell v. Rader, 24 Penn. St. Rep. 283, that where a sealed agreement is so changed by a subsequent written one, that the former could not be executed in connection with the latter, as made, the whole becomes paroL In McComb v. Kittridge, 14 Ohio Rep. 384, it is held that a written agreement, past due, may be altered by a parol agreement.

M. M. Ray and B. F. Davis, for the appellant. William Henderson, for the appellee.

Per Curiam. — -The judgment is reversed, with costs. Cause remanded, &c.