Dow v. Tuttle

Where the promisee of a note, payable at a day certain, contracts, at the time the note is given, not to demand payment of it until a certain time after its maturity, such contract is a collateral promise, for the breach of which, if there be a legal consideration, an action may lie; but it will be no bar to an action on the note, when due by the terms of it.

Assumpsit by the endorsee against the maker of a promissory note, dated February 16, 1804, payable, in one year from the date, to Benjamin Dow, and by him endorsed to the plaintiff, on the 12th day of July, 1805. Upon non assumpsit pleaded, the action was tried at the last September term in this county, before Thatcher, J., and a verdict being found for the plaintiff, the defendant filed his exceptions to certain directions and opinions of the judge, upon which the cause now came before the Court. From the exceptions it appears that, after the note declared on had been read to the jury, the defendant offered to prove that, at the time of making the note, it was agreed between the promisor and promisee, and was the condition on which the note was given, that payment should not be demanded until the expiration of five years, and. that the promisee would not sell or part with the note. The defendant also offered to read to the jury a paper, in the following words, viz.: “ Cornville, February 15, 1804. These lines may certify that I, the subscriber, agree with James Tuttle to wait on him for the money due me, ’till he turns his property to the best advantage. Benjamin Dow; ” and to prove by witnesses that the said writing was made and signed at the same time with the note declared on, though bearing different dates, and constituted part of the same contract; and, further, to prove that said Tuttle should be allowed five years to turn his property, as mentioned in said writing ; that the plaintiff was present, and had full knowledge * of all the agreements aforesaid; and that the [ *415 ] defendant refused to sign the note, until the above condition and agreement were made. The plaintiff’s counsel objected to the admission of this evidence, and the judge refused to admit it, and directed the jury to find a verdict for the plaintiff.