afterward drew up the opinion of the Court. This was an action of assumpsit on a promissory note, which the defendant admits was made by him payable to his own order, and by him was indorsed to the plaintiff; and he relies on two grounds of defence.
1. That the action was commenced before the note was by law payable.
2. And if not, that the note has been paid.
Admitting the facts offered in evidence by the defendant to have been satisfactorily proved, we are nevertheless of the opinion,' that they do not show the payment of the note in controversy. The goods unsold and forwarded to the plaintiff, he has the right, by virtue of the assignment, to hold as collateral security ; and if he is accountable to the defendant for the money received for the amount of sales, he has a right to ap propriate the amount to the payment of another of the notes, for the sum of $ 1248-91, and interest, which still remains due and unpaid.
The money paid for the goods sold was not received until after the commencement of this action, when the last mentioned note had become payable. The plaintiff, therefore, had a right to appropriate the money received tc the payment of either note, as no appropriation had been made by the defendant. And we think his prosecution of this action, and his forbearing to sue the other note, is satisfactory evidence of his electing to appropriate the money received by him or his agent, to the payment of the other note. If no such election had been made, the Court would probably be authorized to allow the appropriation to be made towards the payment of the note not sued. The property was assigned as collateral security of all the notes. The first note was paid at maturity, but the other two were due and payable when the money in the plaintiff’s hands was received. It is immaterial to the defendant, to the payment of which note the money is applied, unless his object be to subject the plaintiff to the liability of paying the costs of this suit, an object manifestly unjust, unless the action has been prematurely commenced.
The case of Perkins v. Gilman, 8 Pick. 229, was an ac tion on a promissory note, and the defendant pleaded, that after the making of the note the promisees, by a letter of license, in consideration of the defendant’s inability to pay his debts, agreed to give him one year from the date of the letter of license to arrange his affairs and collect his debts, and engaged not to attach his goods nor sue or molest him in the mean time. This plea, on demurrer, was held bad, on the ground, that a covenant not to sue for a debt or other demand, within a limited time, cannot be pleaded in bar to an action brought within the time limited. This decision is certainly fully supported by the authorities there cited.
In the case of Alloff v. Scrimshaw, 2 Salk. 573, it vías de cided, that a covenant not to sue for a debt due on a bond, for ninety-nine years, could not be pleaded in bar to an action on the bond. The reason why a covenant never to sue for a demand due may be pleaded in bar to an action on the demand, is to avoid circuity of action, as the defendant in such an action would be entitled to recover back from the plaintiff the same amount of damages recovered against him, in an action on the covenant not to sue. This reason is not applicable to a covenant not to sue, for the breach of which the damages may be more or less according to circumstances. It was argued
In the case of the Central Bank v. Willard, 17 Pick. 150, it was proved, that after a promissory note discounted by the bank had become due, the bank, upon the application of the promisor for a renewal, indorsed on the wrapper of the note the words, ‘renewed for three months”; and the promisor paid the interest in advance, but the note was retained by the bank, and no new nóte was given. It was held, that the evidence proved an independent agreement, which could not bar the action on the note, and that, at most, it would be evidence of a collateral contract not to sue the note until after the time for which it was to be renewed.
These decisions fully maintain the present action ; and we think there is no sufficient reason for overruling them, notwithstanding the cases cited by the defendant’s counsel, in some of which a different doctrine is laid down by the courts in New York and New Hampshire. The principle sustained by these decisions is, that a verbal agreement, upon a sufficient consideration, made subsequently to the giving of a note, may be given in evidence, to vary its effect; and, consequently, that the time of performance of a simple contract in writing may be extended by a subsequent parol agreement between the parties.
The decisions of these courts are entitled to great respect, but, in our judgment, our own decisions are more conformable to the elementary principles of the law of contracts. In the present case, for instance, the promise offered to be proved is a promise from the plaintiff to the defendant, not from the de
These considerations seem to us to have weight, and to sustain the doctrine maintained by this Court, as being conformable to strict legal principles. The only objection to its practical effect is, that in order to administer justice, two actions may be necessary instead of one ; but this is often necessary when there are independent covenants or contracts, and there can be no allowance of a set-off.
Another consideration in favor of continuing to maintain the doctrine long since established is, that parties must be presumed to have made their contracts in reference to the law as thus established. The plaintiff, when he agreed to postpone the time of payment, may be presqmed to have known, that he could sue within the time limited, if he should think it necessary to secure his debt. He brought his action a short time before the enlargéd time of payment expired, and secured his debt by attachment. If he consulted counsel, when he brought his action, as doubtless he did, he must have been informed, that he would be liable only to such damages as the defendant might recover against him, for the breach of his promise, which would be trifling, as the eight months had expired before the entry of his action. Under such circumstances, unless there were cogent reasons to the contrary, we ought to abide by the rule of stare decisis. We are of opinion, however, that the decisions of this Court on the point in controversy, are well maintained upon strict legal principles, although we concur in the law as laid down in many of the cases cited by the defendant’s counsel, wherein it was held, that an executed verbal agreement, varying the terns of a previous written contract as
In the present case the agreement offered to be proved, was executory, for the breach of which the plaintiff is liable to an action, in which the present defendant will be entitled to a full indemnity for any damage which he has or may suffer. But the agreement cannot, as we think, operate as a bar to this action.
It cannot therefore be objected to this principle of law, which we deem to be correct, and to which we adhere, that it provides no remedy for a violation of the rights of the debt- or. It, undoubtedly, may operate advantageously to the creditor in cases of the insolvency of the debtor ; but the former cannot avail himself of the advantage at the expense of the latter; so that ultimately no injustice can be done to either party.
The conclusion upon the whole matter is, that in point of law the action is well maintained, and the plaintiff is entitled to
Judgment on the verdict.