
    Fuller et al. v. Negus et al.
    
    
      (Supreme Court, General Term, First Department.
    
    January 24, 1890.)
    'Payment—Acceptance oe Note—Extension op Time.
    A note given for a pre-existing indebtedness does not operate to extend the time for payment of the original debt, or suspend the right of action on the same until the maturity of the note, unless there is some agreement to extend the time, or other consideration for the note.
    Appeal from circuit court, New York county.
    Action by George Fuller and others against William I. Negus and another, •to recover for goods sold and delivered. Plaintiffs appeal.
    
      Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Arthur Furber, for appellants. William F. MacRae, for respondents.
   Daniels, J.

The cause of action included in this action, as it was set forth in the complaint, was for goods sold and delivered by the plaintiffs to the defendants between the 1st of September, 1887, and the last day of January, 1888, amounting to and of the value of $7,368.25. The answer did not deny the sale or delivery of these goods, but by way of defense it stated that the-goods were sold on a credit which had not expired at the time of the commencement of the suit. There was no proof upon the trial that the goods, or any part of them, had been sold or delivered on credit; and without that proof it is to be inferred, from the admissions resulting from the answer, that no credit whatever was allowed upon the sale of the goods. But evidence was given by one of the plaintiffs, who was called and examined as a witness for the defendants, establishing the fact that seven notes had been given by the defendants for the indebtedness created by the sale of the goods. These notes were given between the 28th of October, 1887, and the 25th of January, 1888. Neither of the notes had become due at the time when the suit was commenced. But this witness, in addition to the fact of the making and delivery of the notes by the defendants, testified that they were not given at the time-the sales were made, and they were no part of the agreement of sale. This-evidence was in no manner questioned or contradicted upon the trial. And it is to be inferred from it, and the statements contained in the complaint and the answer, and the absence of proof to the contrary, that the goods were not sold upon a credit, but that the indebtedness thereby created matured as the sales and deliveries in fact took place; and that these notes were respectively given after the sales had taken place for which they were received, and after the indebtedness in that manner created had matured and become due. The-same grounds have been taken in favor of the direction at the trial for a verdict in-favor of the defendants as have been considered in the case of Graham v. Negus, ante, 679. The authorities were there considered to entitle the-plaintiffs to maintain an action for the purchase price of the goods, notwithstanding the fact that the debtor’s notes were afterwards made and delivered, to them for the same indebtedness, -payable at future periods of time. That-is practically the point upon whicli the disposition of this case also depends, for there was no agreement entered into between the parties by which the defendants were given an extension of the time for the payment of the indebtedness until the notes should respectively mature. Neither was there any consideration passing between these parties for which the notes were in fact received by the plaintiffs; and, as the notes were produced and offered to be-surrendered upon the trial, that fulfilled the extent of the plaintiffs’ legal obligation, and entitled them to recover the amount owing to them upon the-sale and delivery of the goods. The case was disposed of at the trial upon the-application of each party for the direction of a verdict, and an exception was-taken to the direction of a verdict in favor of the defendants. This direction, as the facts appeared from the proof, was not supported by the law, and the-judgment should be reversed, and a new trial ordered, with costs to the plaintiffs, to abide the event. All concur.  