H. B. Pitts' Sons' Manufacturing Co. v. Commercial National Bank

Lacey, J. The question involved here is, can a plea in bar be sustained to an action in a case where the time for the payment of the debt due had been extended by a new agreement between the parties based on a valid consideration, and that time has not expired before suit brought ? And was there in this case a valid consideration? The first of these propositions has been settled in the negative by our Supreme Court in a number of cases. In Guard v. Whiteside, 13 Ill. 7, the court says : “ A covenant not to sue within a limited time can not be pleaded in bar to an action brought before the time has expired. The remedy of the party is a direct action on the covenant. The law on this subject is too well established to admit of a doubt or discussion. * * * There is a very satisfactory réason why a plea in bar of the action should not be sustained.' A judgment for defendant on such a plea would forever conclude the plaintiff from bringing another action.” It was intimated, however, at the close of the opinion, that perhaps such agreement might be pleaded in abatement. In Archibald v. Argall, 53 Ill. 207, and Canlan v. Johnson, 90 Ill. 91, it was held that such matter was in abatement and not in bar. We think that these authorities are conclusive of the case here. The plea was in bar and not in abatement. The demurrer, therefore, was properly sustained for that reason. The numerous authorities cited on page 9 of the brief of the plaintiff in error, we think not in point, as those were cases of composition agreements, where either there was an agreement to take less than the full amount of the debt or to take a third party for it, and in such cases the demand would be for the new amount agreed upon or against the third party. The case of Drake v. Drake, 83 Ill. 526, is cited by plaintiff in error as authority for the doctrine contended for, that the plea in question though commencing and concluding as a plea in bar may be treated as a plea in abatement. We do not understand that the rule contended for goes to that length or that the case cited supports such, claim. The plea in that case was a plea properly to the jurisdiction of the court on the grounds that service was had in Oook County where the defendant resided, and not in DeKalb where the defendant did not reside and where the suit was brought, and that the cause of action was not local. The commencement and conclusion of the plea in the casé above cited was a prayer of “judgment of the writ and declaration and that the same be quashed,” in form a plea in abatement, and not “ whether the court ought to have further cognizance of the writ,” which would be in form of a plea to the jurisdiction of the court, which latter in order to preserve technical accuracy it should have been. A demurrer to the plea was sustained by the court, which action of the court was assigned for error. The court held the assignment, good, and in deciding the case said, quoting a-clause in the opinion in a former case, Humphrey v. Phelps et al., 57 Ill. 132 : “But the right of a party to be sued in the county where he resides and to have his cause tried there is statutory and he ought not to be denied that right, a right to him in many instances of the utmost importance, by any technical and metaphysical bearing in regard to pleas in abatement.” The court also decided that the plea was amendable under Sec. 23 of the Practice Act of July, 1872. But we do not understand that the court has ever gone to the length of holding that a plea clearly in bar can be treated as a plea in abatement. In fact the case of Guard et al. v. Whiteside, and the other cases cited, expressly negative such an idea. The fact that this was a composition agreement to extend time can, as we conceive, make no difference. It is the same as though the contract had been to extend time for some other valid consideration such as for money above the debt due or interest in advance, etc. The fact, that the consideration here, which we are inclined to hold good, was that others should also give time, could not change the rule. All that is done by this agreement is to extend time. There is no composition of the debt or displacement of the original contract as was the case in Gillfillan v. Farrington, 12 Ill. App. 101. If in this case, as above said, this plea is good in bar, the appellee would be forever concluded of its cause of action if the defense was made good under such plea, which would work a great hardship and be in the highest degree unjust. Perceiving no error the judgment of the court below is affirmed. Judgment affirmed.