
    Samuel K. Turnbull v. William Brock.
    Part payment of a debt already due is not a sufficient consideration for an agreement to extend the time for the payment of the residue.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Greene county.
    The plaintiff in error brought an action against Elijah S. Carr, D. S. Horney, and the defendant in error, Brock, in the court of common pleas, upon a promissory note executed by said defendants July 13,1876, and given for the payment of $1,829, at five months and ten days from its date. Brock alleged by his answer that he was surety only on the note for Carr and Horney, who were principal makers; that when the note became due, the plaintiff, in consideration of the payment of $200, then made to him by Carr and Horney to apply on the amount due, agreed to extend the time for the payment of balance until the 10th day of the month then next, and that this agreement for such extension was made without his knowledge or assent. This agreement was denied by the reply. Carr and Horney were in default. A trial was had on the issue thus joined, and resulted in a verdict and judgment for the plaintiff against Brock. On error the district court reversed the judgment for an alleged erroneous instruction to the jury, not necessary here to notice. The agreement set up in the answer seems to have been treated in both courts below as valid, if established.
    
      D. H. Munger, for the motion.
    
      Charles Darlington, contra.
   By the Court.

There is manifest error in the judgment of the district court. It is immaterial whether there was error in the instructions given to the jury in the court of common pleas or not. The plaintiff was entitled to judgmant on the pleadings. Code, § 384. A promise not supported by a consideration creates no legal obligation; and hence its non-performance creates no legal liability. Part payment of a promissory note or debt, already due, is not a sufficient consideration for an agreement to extend the time for the payment of the balance. The makers of the note were under a legal obligation to pay the whole amount, which necessarily included every part, and the, plaintiff, in receiving a part, obtained only what and indeed less than he was entitled to. No benefit, profit, or advantage, in a legal sense, resulted to the plaintiff, nor any detriment or loss to the defendant. The promise alleged, in point of legal obligation, was in nowise different than if it had been a mere naked agreement to extend the time for the payment of the entire amount due.

Motion granted. Judgment of the district court reversed, and that of the common pleas affirmed.  