Opinion
October 1, 1930.
November 24, 1930.
Promissory notes — Extension of time — Consideration — Affidavit of defense — Interest.
1. An agreement to extend the time of payment of a promissory note must be based on a consideration.
2. After a promissory note is due, a mere adjustment of interest will not constitute consideration supporting an extension of time of payment.
3. An agreement by a payee of a promissory note overdue that any purchases made by him thereafter at the maker's store were to be charged on account of the balance due on the note, until a certain time, does not show a consideration supporting a claimed extension of time of payment.
Argued October 1, 1930.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Appeal, No. 107, March T., 1930, by defendant, from order of C. P. Allegheny Co., Oct. T., 1929, No. 3604, making absolute rule for judgment for want of sufficient affidavit of defense, in case of Ida Hecht, also known as Ida B. Hecht v. H. Hecht, also known as Harry Hecht. Affirmed.
Assumpsit on promissory notes.
Rule for judgment for want of sufficient affidavit of defense. Before MacFARLANE and MOORE, JJ.
MOORE, J., filed the following opinion:
In this action on two promissory notes, both past due, the plaintiff seeks judgment for want of a sufficient affidavit of defense.
In his affidavit of defense, the defendant contends that after the due date of the notes the parties orally and mutually agreed to extend the time of payment thereof to January 1, 1931, thus making the plaintiff's claim premature. The question of law involved in the motion before us is whether or not the affidavit of defense shows any consideration to support an extension of time of payment of the notes until January 1, 1931.
The portion of the affidavit of defense, claimed to be insufficient, comprises the sixth paragraph thereof, and reads as follows: "Defendant admits the averments of the sixth paragraph of the statement of claim, but further alleges that on said date, said two notes were in possession of plaintiff herein, and on said date, January 17, 1929, in addition to an adjustment of interest on said notes being made, it was orally and mutually agreed and understood by and between the parties that payment of said notes was to be extended to January 1, 1931, and in further consideration that any purchases made by plaintiff herein at the store of the defendant were to be charged on account of the balance of said notes, so that on January 1, 1931, all purchases made by plaintiff were to be subtracted from the amount of the principal of said notes, plus interest, and said balance on said date was to be paid to plaintiff in full."
The pleading that after both notes were due an adjustment of interest was made would not constitute consideration supporting an extension of the time of payment.
The additional recital that in further consideration of the extension, any purchases made by the plaintiff at the store of the defendant were to be charged on account of the balances of the notes so that on the extended due date all purchases made by the plaintiff were to be subtracted from the amount of the principal of the said notes, plus interest, and the remaining balance then to be paid to the plaintiff in full, does not disclose consideration supporting the claimed extension of time of payment. This question was passed upon in Shoemaker, to use, v. Farrell, 64 Pa. Super. 34, at pages 37 and 38, as follows: "An agreement to extend the time of payment of an overdue obligation must be based on a consideration: . . . . . . The consideration which will support an agreement to extend the time of payment . . . . . . may be a slight advantage to one party or a trifling inconvenience to the other."
In effect, the defense set up presents a change in the method and time of making payments. To support such a modification there must be an independent consideration, and no such independent consideration is pleaded.
That a partial payment of a debt after maturity will not be sufficient consideration to support an agreement to extend time of payment, was decided in Hartman v. Danner, 74 Pa. 36, at page 40, the reason there being given that in a legal sense such partial payment is neither a benefit to the creditor who is entitled to the whole, nor an injury to the debtor who ought to have done this and more without any promise from the creditor.
Further, as expressed, the claimed consideration can only be considered as an option to pay with furniture and this cannot be deemed a consideration supporting the claimed extension.
The rule for judgment for want of a sufficient affidavit of defense will therefore be made absolute.
Defendant appealed.
Error assigned was order of court, quoting record.
Leonard A. Mazer, for appellant.
Nathan Franzos and Sidney Sanes, for appellee.
We affirm the judgment in this case on the opinion of the court below.