Warburg v. Wilcox

7 Abb. Pr. 336, 2 Hilt. 118

Opinion

By the Court

*—Hilton, J.

—-This action is upon a promissory note made by the defendants to their own order, and transferred to the plaintiff.

The defence was, that the plaintiff, with other creditors of the defendants, had signed a composition deed, whereby it was agreed that the time for payment on all the notes held by the parties signing should be extended 9, 12,15,18, and 21 months, and that this time, or any part thereof, had not expired.

On the trial, the composition deed was put in evidence; and from which, aided by the testimony of the defendant Wilcox respecting his action under it, it sufficiently appears that the creditors signing agreed to exchange the paper then held by them of the defendants, for new notes to be drawn by the defendants according to the extension so agreed on.

Although the agreement is somewhat obscure, yet its language, taken in connection with the testimony in the case, clearly shows that this was the nature of the compromise the parties to it intended to make.

To enable the defendants therefore to avail themselves of any defence to this action, arising out of this agreement, it was necessary for them not only to plead and prove tender of the new notes which were to be so exchanged, but also aver readiness at all times to perform their part of the contract, and bring the new notes thus tendered into court at the trial. (3 Blackst. Com., 303; 2 Kent’s Com., 509 ; Brooklyn Bank a. Degraw, 23 Wend., 342, 345.)

This was not done. It is true the defendant Wilcox testified that at a time when the plaintiff called at his store on this subject, he “ offered him notes upon the time provided in the extension agreement, which he declined to receive.” But he subsequently adds that he had not the notes drawn at the time he made the offer.

As we have seen, this was not sufficient. By the agreement the plaintiff was entitled to the new notes at all events, and to make the defence set up available, the defendants were required to have them in court on the trial, ready for delivery.

For these reasons the judgment of the Marine Court, in favor of the plaintiff, should be affirmed.

Judgment affirmed.

Present, Daly, F. T., Hilton and Brady, JJ.