George W. v. Stark

By the Court, Hilton, J. The defendant is sued as an in. dorser upon a promissory note for $200, made to his order bj one A. H. Gough, and now held by the plaintiffs. The note became due in July, 1854, and it appears that in September following the maker paid to George W. Platt, one of the plaintiffs, $50 on account of it; gave, his individual note, payable in three months thereafter for the. remaining $150; deposited with the plaintiff two corporation leases as security for its payment; and received from him a written instrument acknowledging the receipt of the new note and leases, and releasing the defendant as indorser on the note now sued upon. It is claimed by the plaintiff! that this release is not only void for want of a consideration to support it, but, in addition, that it is invalid because it was obtained upon representations, made by Gough, which induced the plaintiff to sign it, without reading to ascertain its contents or effect. As it is not disputed, that after the note in suit became due, the plaintiff accepted the new note from the maker without the [401] consent or knowledge of the indorser, it is quite immaterial to inquire whether or not the release was invalid upon either of the grounds suggested. The effect of accepting the new note was to extend the time for the payment of the original indebtedness; it entirely suspended the plaintiffs’ right of action during the period it had to run, and the defendant' was, by this extension of credit to the maker, as effectually released from any liability as indorser upon the note in suit, as he would have been by a novation to which he was not a party. Myers v. Wells, 5 Hill, 463; Colemard v. Lamb, 15 Wend. 329, 332; Nexsen v. Lyell, 5 Hill, 466; Fellows v. Prentiss, 3 Denio, 512, 518; Coleman v. Wade, 2 Selden, 44; Wood v. Jefferson Co. Bank, 9 Cow. 194, 206; Putnam v. Lewis, 8 John. 389; Hart v. Hudson, 6 Duer, 294, 304. The plaintiffs were not entitled to recover, and the judgment of the justice in their favor was erroneous. Judgment reversed..