Paige v. Carter

Sharpstein, J. —If it would make any material difference whether the note sued on was delivered at the date it bears on its face, or at some subsequent time, evidence tending .to prove that it was delivered at the latter date should have been admitted. But in view of the plaintiff’s own testimony we think the date of the delivery of the note immaterial. One of the defenses set up by the defendant is that after making the note sued on he compromised with all his creditors, including the plaintiff, by agreeing to pay them twenty-five per cent of their respective claims, and that they all accepted that sum in full satisfaction of said claims. The date of that agreement is posterior to the date which the note bears on its face; but the plaintiff claims that the note was not delivered until after said agreement was made, and therefore was not affected by it. By the agreement all the creditors of the defendant, including the [490]plaintiff, promised to accept said twenty-five per cent of the amount of their claims in full payment and satisfaction of all claims, demands, or other indebtedness1 of whatever kind or nature then due them from defendant; and plaintiff testified on the trial that, .“all the indebtedness of the defendant had. matured prior to the date of the agreement of compromise. All his indebtedness to me of whatever kind, whether this note in suit or others, or whatever' it was, all-had matured prior to the-date of the compromise referred to.” If the defendant fulfilled the agreement on his part, the indebtedness for which the note was given was paid, satisfied, and discharged before the commencement of this action. That indebtedness had matured, before the date of the compromise agreement and was clearly included in it'. If the defendant did not fulfill on his part, (he indebtedness for which the note was given was not satisfied and discharged. The date of the delivery of the note being immaterial, the exclusion of evidence in regard to it, and the denial' of the plaintiff’s motion to amend his complaint, by alleging a delivery after the composition agreement was entered into, could not prejudice him. • '

The objection to the «defendant’s referring to a memorandum to refresh his memory while testifying was properly overruled. Although not made at the time the occurrences took place; nor by witness himself, if made under his direction at any time when the fact was fresh in his memory, it was proper to allow him to refresh his memory by it. (Code Civ. Proc. § 2047.)

But in' support of his counter-claim he should not have been permitted to testify to work done for the plaintiff* after the commencement of the action. And the testimony in regard to-the relations which had existed between plaintiff and defendant was irrelevant, and the objections to its introduction should have been sustained.