Bridge v. Tierman
| Decision Date | 31 October 1865 |
| Citation | 36 Mo. 439 |
| Parties | HUDSON E. BRIDGE, JOHN N. BEACH, AND LEONARD B. HOLLAND, Defendants in Error, v. CHARLES TIERMAN, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to St. Louis Circuit Court.
Davis & Evans, for plaintiff in error.
I. The court erred manifestly in giving judgment for the plaintiffs below after it had continued the cause, no motion being made to set aside the continuance.
II. The answer of the defendant below stated a good defence to the prosecution of the action; for, although it is true that a covenant not to sue for a limited time has been held not to constitute a bar, yet there is no reason to say that such a covenant cannot be pleaded in abatement, to an action brought within the time named in the covenant. (Clopper's Adm'r v. The Union Bank. 7 Harris & Johnson, 103; Cuff et al. v. Penn, 1 Maule & Sel. 21; Raymon v. Fisher et al., 6 Mo. 29, Gerard et al. v. Whiteside, 13 Ill. 7; 3d Tenn. 590; Atwood v. Lewis, 7 Mo. 395.)
Krum & Decker, for defendants in error.
The only defence contained in the answer is the promise made by plaintiff, that he would not sue until the termination “of the present civil war between the United States and the Confederate States.” If this be a valid promise and the defendant has been injured by its breach, he may still have his action against the plaintiff, but it constitutes no defence to the note. The agreement to forbear is for an indefinite time--evidently a sham defence. (6 Mo. 392; 7 Mo. 462.)WAGNER, Judge, delivered the opinion of the court.
In Atwood v. Lewis (6 Mo. 392) and Bircher v. Payne (7 Mo. 462) this court decided that where a person gives his promissory note payable at a certain time, and the payee executes an instrument of writing that at the maturity of the note, on the happening of certain contingencies, he will extend the time of payment and forbear the collection of the money, that the happening of the events or contingencies mentioned in the writing will be no defence to the prosecution of a suit founded on the note; but that if the defendant is injured by the breach of covenant, he must resort to his action for damages.
The only thing that distinguishes those cases from the present one is, that the agreements that were there sought to be set up in defence were in writing, whereas it appears here that the agreement or understanding between the parties was merely verbal.
The court committed no error in giving judgment notwithstanding the answer, as, for aught that...
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...Casner v. Heaton, 237 S.W. 1042; 8 C.J. 429; 43 L.R.A. 472; Atwood v. Lewis, 6 Mo. 392; Bircher v. Payne, 7 Mo. 462; Bridge v. Tierman, 36 Mo. 439; Bank v. Martin, 171 Mo. App. 194, 156 S.W. 488; Rucker v. Robinson, 38 Mo. 154; Hosea v. Rowley, 57 Mo. 357; Stillwell v. Aaron, 69 Mo. 539; Bo......
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