Henehan v. Hart

COOPER, C.

Plaintiff recovered judgment. Defendant has appealed from the judgment and from an order denying his motion for a new trial. The complaint, which is verified, alleges that on July 15, 1895, the defendant executed and delivered to plaintiff a promissory note for fourteen hundred dollars, due one year after date, with interest from date at the rate of one per cent per month until paid. That the interest

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was paid thereon up to March 1, 1897, hut that the interest from said last-named date and the principal remain due and unpaid. A copy of the note is set forth in the complaint. The answer does not deny any of the allegations of the complaint, hut affirmatively alleges as follows:

“That on or about the first day of December, 1896, it was mutually agreed between said plaintiff and said defendant that the time of payment of the promissory note mentioned in said complaint should be extended for one year from the first day of December, 1896, and that during said year the said defendant should pay said plaintiff interest upon the said promissory note at the rate of one per cent per month, and that, in consideration of the said promise to pay said interest during said year, the said plaintiff then agreed to extend the time of payment of the principal of said promissory note for the period of one year from the said date, to wit, from the first day of December, 1896.”

On the trial of the case defendant testified to an oral agreement in substance as alleged in his answer. One Sarah E. Decker also testified that plaintiff had a conversation with her, in which plaintiff admitted, in substance, that she had made such oral agreement with defendant. The witness Decker said that defendant had been her attorney for many years, and that the money was borrowed from plaintiff for her benefit. This testimony was all given under plaintiff’s objection and with leave to move to strike it' out. Tire court afterward, on motion of plaintiff, made an order striking out the said testimony, and the ruling upon this motion presents the only material question in the case. The sole and only question here is, Was the verbal promise, as testified to and as alleged in the answer, extending the time of payment of the written instrument set forth in the complaint, binding upon plaintiff? We think it was not, and that the ruling of the court was correct. Section 1698 of the Civil Code provides: “A contract in writing may be altered by a contract in writing, or by an executed oral agreement, but not otherwise.”