This action was commenced about two and one half months before the maturity of the note. It is a general rule that the nonexistence of a cause of action at law when the suit is brought is a fatal defect which cannot be cured by the accrual of a right of action while the suit is pending. In other words, an action at law can be supported only on the facts *Page 265 as they existed when the action was commenced.Woodbridge v. Pratt Whitney Co., 69 Conn. 304, 305,37 A. 688; Dickerman v. New York, N. H. H.R.Co., 72 Conn. 271, 275, 44 A. 228.
The acceptance of the note in the present case was at the least an agreement for delay, and the plaintiff could not commence an action on the original debt evidenced by the note until the note became due. 2 Parsons on Notes Bills, 155. The reasons for this rule is that the entering into a new agreement and undertaking subjected the defendant debtor to peculiar liabilities, or afforded the plaintiff creditor fresh and peculiar rights which constituted a good consideration for the extension of credit. Judge v. Fiske, 2 Speers (S. Car.) 436, 438, 42 Amer. Dec. 380, 381.
This note implied an agreement to suspend the remedy on the original demand during the term of the note.Brabazon v. Seymour, 42 Conn. 551, 554. See, also, 1 Corpus Juris, page 1148, and cases cited in note 43 at the bottom of page 1148.
It appears that when this action was commenced the note had been discounted and was in the control of the bank, a bona fide holder. The defendants at this time were liable to pay the note to a third party. To now hold that the defendants at this time were liable for the price of the goods for which the note was given, would be a plain evasion of the rule that a cause of action must be supported by the facts as they existed when the action was commenced.
There is error and a new trial is ordered.
In this opinion the other judges concurred.