The defendant admits accepting this draft, admits that it was not paid and that it was protested, and the only, question presented is whether the defense pleaded was sufficient. The defense is that this draft was given to the plaintiff’s assignor, the Mercantile Trust and Deposit Company, in pursuance of a contract between the trust company and the drawer of the draft, the Bessemer City Cotton Mills, whereby it was agreed that the trust company which was the owner of a large amount of the bonds of the mills company secured by a mortgage upon its property which it was entitled to enforce and also a creditor of the company, agreed with the drawer of the draft that if the drawer would procure the acceptance of the draft or bill of exchange by the defendant the trust company would forbear and refrain from foreclosing under the mortgage, and would desist and refrain from taking any further steps either by legal proceedings- or othérwise to enforce the collection of the money due it, and would permit the drawer of the draft, the mills company, to resume the operation of its plant for the manufacture of its goods and permit it to manufacture and deliver to the defend*114ant 'additional goods wherewith to secure the acceptance of the said draft or bill of exchange until a reasonable time had elapsed after the acceptance by the-defendant of the said draft or bill of exchange and after the maturity thereof; that subsequently the "trust com-, pany violated this agreement and proceeded against the mills company so that the mills company was prevented from continuing its business. It is not alleged that there was any contract between the trust company and this defendant, but it is alleged that with the Consent of the trust company the contract between the trust company and the mills company was communicated to the defendant, and it was based upon this contract that the defendant accepted the bill in suit.
It seems to me that this was no defense. The bill was dated on the 2d of December, 1908, and.the complaint alleges that this -contract was made prior to that date. The consideration of the acceptance was the making of the contract and if a valid contract between the mills company and the.trust company was actually made there was a valid consideration for the acceptance.
The answer alleges that on January 25, 1909, the trust company failed to perform its promise and agreement and instituted and continued legal proceedings to foreclose the mortgage upon the property of the mills company and so prevented it from fulfilling, its contract with the defendant. It is not alleged that the trust Company agreed for any particular time to suspend proceeding against the mills company, and the only breach alleged 'is that having made a contract' prior to the 2d of December, 1908, not to proceed againts the mills company, and that on January. 25, 1909, it did proceed. Upon the face of the'contraet the mills company secured a delay of two months and how much more doés not appear. If a valid contract was made by which the trust company agreed not to proceed against the mills company to enforce its demands there was -a valid consideration for the acceptance and transferring the accepted bill to the trust company was a good consideration for the making of the agreement. Therefore if such an agreement was made the mills company could have successfully resisted any attempt of the trust company, to enforce its security for the mills. company indebtedness or could now recover from the trust company damages for a breach of its contract. It was tlie making of the contract *115that was the consideration for the acceptance and a subsequent breach of the contract by the trust company did not destroy the consideration so as to avoid the acceptance. Bookstaver v. Jayne (60 N. Y. 146), cited as a controlling authority in the prevailing opinion, is not, I think, in point. In that cáse the making of the noté in suit and the indorsement of the same by the defendant were for a specific purpose which was never carried into effect, the purpose being to secure the discontinuance of an action brought for the recovery of the debt which the note was given to secure ; the giving of the promissory note to. secure the discontinuance of an action was a delivery of the note upon condition and the obligation never took effect because the action was not discontinued. Gillespie v. Torrance (25 N. Y. 306), which is an authority for the plaintiff, was there distinguished as in that case as in this the com tract was made between the principal and a third party and not with the surety, while in the case then under consideration the contract was directly with the surety. (See, also, Lasher v. Williamson, 55 N. Y. 619.) In the Bookstaver Case (supra) the consideration failed entire, for it was simply given to secure the discontinuance of the action which was never discontinued. But in this case, the contract being made between the mills company and the trust company to which the defendant was not a party and the contract having been performed for at least two months from the making of it and the time when the trust company commenced proceedings against the mills company, there was not such an entire failure of consideration, it seems to me, as would relieve the acceptor from his obligation.
I "think, therefore, the judgment appealed from was right and should be affirmed.
Judgment reversed and new trial ordered, with costs to appellant to abide event.