
    Hotchkiss S. Finch, Resp’t, v. Frank A. Skilton et al., App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1894.)
    
    1. Bills and notes—Consideration—New maker.
    An indefinite extension, followed by actual forbearance for about two years, is a sufficient consideration for the obligation of a new maker.
    2. Same—Demand.
    No demand is necessary prior to the commencement of an action upon such note against the maker.
    3. Appeal—First instance.
    A'daim, not made in the pleadings or at the trial, cannot be raised on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on a case and exceptions.
    
      E. C. Aiken, for app’lts; H. Austin Clark, for resp’t.
   Merwin, J.

—This action was brought upon a promissory note, a copy of which is a follows:

“$3,000. Auburn, N. Y, January %, 1886.
Eighteen months after date, I promise to pay to the order of Finch & Allen three thousand dollars, at the First National Bank of Auburn, value received, with use.
“Frank A. Skilton,
“Harry I. Skilton.”

The execution of the note was admitted. It appeared, however, that Harry I. did not sign it until some time after it was executed and delivered to the payees by the other maker. One of the defenses of Harry I. was that he signed for the accommodation of the other maker, and without consideration. The plaintiff claimed that Harry signed the note on or about December 17, 1887, in pursuance of an arrangement between the plaintiff and Frank that the plaintiff would give time on the note if he would procure his brother Harry to sign it, and would release a certain privilege he (Frank) had under a mortgage given by him to the payees on the 25th of February, 1886, as collateral security to this and other notes. Whether there was such an arrangement was the main issue of fact at the trial. Upon it the jury found for the plaintiff, and the evidence is sufficient to sustain that conclusion. The extension, though indefinite, followed as it was by actual forbearance for about two years, was a sufficient consideration for the obligation of the new maker. Mutual L. Ins. Co. v. Smith, 23 Hun, 535 ; Traders' Nat. Bank v. Parker, 130 N. Y. 415; 42 St. Rep. 506.

A release of the privilege referred to was given. This is dated December 17,1887, and wa^ executed by Frank on March 9,1888. The defendant Harry claims that this release operated to change the terms of the mortgage; that it was done without his knowledge or consent; and that, therefore, he, being a surety, was discharged from liability, under the authority of Paine v. Jones, 76 N. Y. 274. The mortgage was upon the lands in the state of Illinois, and there was in it a provision by which the mortgagees agreed to release one or more of certain lots upon the payment of '$200 for each lot. The release signed by Frank was “for the purposeCbf waiving such agreement for the releasing of any lot or lots until the actual sale of said lot or lots, and in case any lot is sold the money for which said lot is sold shall go to the said Finch and Allen, and no lot to be released unless two hundred is paid thereon.” According to the evidence of the plaintiff, ibis release was executed in pursuance of the arrangement for time on the note, and was a part of the consideration for the extension, so that the arrangement was not complete until the release was executed. If that was so, it cannot well be claimed by Harry that his rights as surety were affected by the release. The case of Paine v. Jones would not apply. Upon this line it is also suggested by the appellant Harry I. that on .the 1st of January, 1888, the plaintiff took from Frank A. Skilton two notes, of $90 each, for interest due at that date, the notes being payable in seventy-five and ninety-days; and the claim is made that this was an extension of time on the interest, and operated to release Harry I. from his obligation as surety. One note was paid. The other was not. The time given did not exceed the extension of time to be given on the whole debt under the arrangement then pending. Ho claim seems to have been made, at the trial or in the pleadings, that the giving of these notes for the interest affected the surety. It is too late now to raise the question.

It is further claimed that a demand was necessary before suit This claim is on the theory that the. extension of time was unlimited. The plaintiff testifies on this subject as follows: “ Several times I was dunning him (Frank) for the pay on this note and mortgage, and he Wanted time, and it kept running along. Finally, I said, ‘ I can’t give any more time without I get more security ; ’ and, said he, ‘ What do you want? ’ I said, 11 want Harry’s name to this note, and I want a waiver of the 8200 clause in the mortgage.’ He said he would give it. I told him, : All right,’ I would extend the time indefinitely. And he wanted I should put it six months or a year ahead, and I told him I wouldn’t do it. I said, ‘ You must pay the interest semiannually, if it runs six mouths.’ He talked that he could fix it in three or four months. He said Harry would. He did not tell me to go anywhere for that purpose. He told me that he had talked with Harry about it, and that Harry would sign it. Frank and Harry were partners.”

This action was commenced on the 14th of December, 1889. The interest that had accrued since January 1,1888, was not paid. Upon a note payable on demand, no demand is necessary prior to the commencement of the suit, as against the maker. Wheeler v. Warner, 47 N. Y. 519; Locklin v. Moore, 57 N. Y. 362. The extension in this case was in effect for a reasonable time. Traders' Nat Bank v. Parker, 130 N. Y. 415, 420; 42 St. Rep. 506. When that time had elapsed, no demand was necessary, any more than upon a demand note. It has been held that where time of payment of a loan is not specified in a contract the law will presume that it was intended by the parties to be paid in a reasonable time, and m such cases a demand before suit is not necessary. Neimeyer v. Brooks, 44 Ill. 77. The surety, having signed as maker, has, in this respect, no better position than the principal. Brandt, Sur., § 82.

It is further claimed that “ as there was no evidence on the part of plaintiff, except his own, as to what was realized on foreclosure in Chicago, the court should have submitted the whole case to the jury, instead of directing them to find a verdict against Frank A. Skilton.” There was, however, no evidence upon which the jury had a right to say that the plaintiff realized on the foreclosure any more than he testified he did. It is therefore difficult to see how any error in this respect was committed.

Our attention is called to three exceptions on questions of evidence.

1. Oral evidence of the contract or arrangement for extension made between plaintiff and Frank A. Skilton was admissible. Only' a part of it was embodied in the release of December 17, 1887. Chapin v. Dobson, 78 N. Y. 75. The original transaction between plaintiff and Frank, under which Harry afterwards signed the note, could be shown, although Harry was not then present.

2. It is not shown that the court erred in excluding proof of the contents of a letter from Mr. Guest to the plaintiff. One of the objections was that it was immaterial. The letter is not in the case, or any statement of what the contents are. We cannot therefore say it was material.

3. The defendant Frank A. Skilton being on the stand as a witness for the defendants, the question was asked him: ‘‘Q. Did Mr. Finch state to you that Mrs. Guest was insolvent, and was not. worth a dollar?” This was objected to by plaintiff generally, and' the objection was sustained. It is not apparent that this was material. Mrs. Guest, as the grantee of Frank A. of the mortgaged premises, had agreed to pay' the mortgage, but there is no allegation in the answer that the plaintiff was ever requested to collect of Mrs. Guest.

No other questions are presented. We fail to find any good ground for reversal. The judgment should therefore be affirmed.

All concur. Judgment and order affirmed, with costs.  