Murphy v. Robbins

Davison, J. The appellees, who were the plaintiffs, sued Murphy on two promissory; notes, one for the payment of $150, and the other for $71. The first note bears date November 28, 1857, and is payable at six months; and the .second is dated August 2, 1858, and payable one day after date. The defendant answered the complaint by two paragraphs, to each of which the plaintiffs filed a separate demurrer. The demurrers were sustained, and final judgment given for the plaintiffs. In his brief, the appellant makes no point relative to the action of the Court in sustaining the demurrer to the second paragraph, hence the first, alone, will be noticed. The first paragraph alleges, “that about June 10, 1859, the [423] plaintiffs, for a good and valuable consideration, agreed with the defendant to, and did, extend the time of payment on said notes, and each of them, for four months from June 10; wherefore the said defendant says that the said notes are not due.” Crane, Mason and Hanna, for the appellant. R. L. Hathaway, for the appellees. This answer concedes that the notes, on then face, are due, but alleges, in effect, that because of the agreement “ to extend the time of payment,” they were really not due at the commencement of the suit. And hence the only question to settle is, can such agreement be set up in defense of the action? Lowe v. Blair, 6 Blackf. 228, decides that “An agreement not to sue for a limited time on a promissory note, is no bar to a suit on tbe note commenced within that time.” See, also, Clark v. Snelling, 1 Ind. 382; Thalman v. Barbour, 5 id. 178; Smith v. Grabill, 15 id. 267; 2 Am. Law Reg. 389. Upon these authorities, we must hold the demurrer well taken. Per Curiam. — The judgment is affirmed, with 10 per cent, damages and costs.