Strong v. Sheffield

Decision Date15 January 1895
Citation39 N.E. 330,144 N.Y. 392
CourtNew York Court of Appeals Court of Appeals


Appeal from supreme court, general term, Second department.

Action by Benjamin H. Strong against Louisa A. Sheffield as indorser. From a judgment of the general term (21 N. Y. Supp. 505) reversing a judgment of the county court for plaintiff, plaintiff appeals. Affirmed.

Cornelius E. Kene, for appellant.

Martin J. Keogh, for respondent.


The contract between a maker or indorser of a promissory note and the payee forms no exception to the general rule that a promise not supported by a consideration is nudum pactum. The law governing commercial paper which precludes an inquiry into the consideration as against bona fide holders for value before maturity has no application where the suit is between the original parties to the instrument. It is undisputed that the demand note upon which the action was brought was made by the husband of the defendant and indorsed by her at his request, and delivered to the plaintiff, the payee, as security for an antecedent debt owing by the husband to the plaintiff. The debt of the husband was past due at the time, and the only consideration for the wife's indorsement which is or can be claimed is that, as part of the transaction, there was an agreement by the plaintiff when the note was given to forbear the collection of the debt, or a request for forbearance, which was followed by forbearance for a period of about two years subsequent to the giving of the note. There is no doubt that an agreement by the creditor to forbear the collection of a debt presently due is a good consideration for an absolute or conditional promise of a third person to pay the debt, or for any obligation he may assume in respect thereto. Nor is it essential that the creditor should bind himself at the time to forbear collection or to give time. If he is requested by his debtor to extend the time, and a third person undertakes, in consideration of forbearance being given, to become liable as surety or otherwise, and the creditor does in fact forbear in reliance upon the undertaking, although he enters into an enforceable agreement to do so, his acquiescence in the request, and an actual forbearance in consequence thereof for a reasonable time, furnishes a good consideration for the collateral undertaking. In other words, a request followed by performance is sufficient, and mutual promises at the time are not essential, unless it was the understanding that the promisor was not to be bound, except on condition that the other party entered into an immediate and reciprocal obligation to do the thing requested. Morton v. Burn, 7 Adol. & E. 19; Wilby v. Elgee, L. R. 10 C. P. 497; King v. Upton, 4 Greenl. 387; Leake, Cont. p. 54; Reynold v. Padelford, 2 Am. Lead. Cas. p. 96 et seq. and cases cited. The general rule is clearly, and in the main accurately, stated in the note to Forth v. Stanton, 1 Saund. 210, note b. The learned reporter says: ‘And in all cases of forbearance to sue such forbearance must be either absolute or...

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51 cases
  • Nyhus v. Travel Management Corporation
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • August 11, 1972
    ...F.2d 233, 236 (7th Cir. 1937) (applying Illinois law); Sanford v. Lundquist, 80 Neb. 414, 118 N.W. 129, 132 (1908); Strong v. Sheffield, 144 N.Y. 392, 39 N.E. 330, 331 (1895); Silberman v. National City Bank, 36 Ohio App. 442, 173 N.E. 16, 18 (1930); McClaugherty v. Bluefield Waterworks & I......
  • Sun Forest Corp. v. Shvili
    • United States
    • U.S. District Court — Southern District of New York
    • May 29, 2001 collect a debt when due supports a promissory note, whether signed by the debtor or by a third party. See Strong v. Sheffield, 144 N.Y. 392, 394-95, 39 N.E. 330, 331 (1895). Moreover, to the extent that cash advances by Mandel were originally intended as capital contributions in exchange......
  • Verdi v. Jefferson Trust Co.
    • United States
    • New Jersey Court of Chancery
    • April 14, 1938
    ...v. King (1857) 2 Hurl. & Nor. 517; Boyd v. Freize (1856) 5 Gray (Mass.) 553; Howe v. Taggart (1882) 133 Mass. 284; Strong v. Sheffield (1895) 144 N.Y. 392, 39 N.E. 330." In the case of Schenkel v. Schenkel, 1930, 152 A. 322, 8 N.J.Misc. 863, at page 864, the Supreme Court, considering a sim......
  • Curtis Properties Corp. v. Greif Companies
    • United States
    • New York Supreme Court — Appellate Division
    • June 13, 1995
    ...with their landlord, so long as they do not feel so disposed, is an illusory promise obliging defendants to nothing (Strong v. Sheffield, 144 N.Y. 392, 39 N.E. 330 [promise to forbear from demanding payment of antecedent debt for unspecified period is illusory]. Because the promises of both......
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