Lyman v. Rasmussen & Nelson

Gilfillan, C. J. Action for goods sold and delivered. Thedefence was that after the debt became due the defendants transferred to plaintiff two promissory notes of third persons-as collateral security for the debt, in consideration whereof the plaintiff agreed with defendants that the time for payment of the debt should be extended to April 1, 1879. The action was brought before that date. [385] Whether a covenant not to sue within a given time be a defence, or, as some eases hold, be not a defence, to an action brought within the time, we have no hesitation in holding that a valid extension of the time of payment is a defence to an action brought within the time of the extension. During such time the debtor is not in default; the debt is not demandable, not due. So far as there may have been a default, and a right to sue for it prior to the time of the agreement to extend the time of payment, it must be taken to be waived by the extension. Such is of course the intention of the parties to the agreement; and where the agreement is valid, there can be no reason why a court should disregard it. Judgment affirmed.