135 Minn. 208 | Minn. | 1916
The defense of want of consideration for a promise made by one party to pay the just debt of another, is not looked upon with much favor by the courts, yet the established rule of law that every executory promise must have a consideration to support it, must be observed. No consideration passed in this transaction from plaintiff to defendant. The note was a renewal and extension of a former note given to plaintiff by Batcheller alone-and for his sole debt. Plaintiff contends that the note in suit was taken from Batcheller, on the condition that it would be signed by defendant, that defendant knew this fact; that the note was signed by defendant before it was accepted by plaintiff, and was so signed for the purpose of giving it credit and to secure an extension of time for payment of the old debt. If these were the facts, the note was in reality signed on the back by defendant before it was delivered, and the debt for which the note was given was sufficient consideration to support the promise of defendant. Peterson v. Russell, 62 Minn. 220, 64 N. W. 555, 29 L.R.A. 612, 54 Am. St. 634; G. S. 1913, § 5876. Defendant denies that these were the facts and claims that the note was signed by him after an unconditional delivery of it by Batcheller to plaintiff, and without
The finding of the court that defendant signed the note without consideration, must be taken as determining the facts adversely to plaintiff’s contention.
Much was said in the trial court, and in the briefs, and on the argument in this court, to the effect that the note was’executed by defendant for an illegal consideration. No such issue was raised in the pleadings. The defense pleaded was that there was no consideration at all. The court made no finding on the question of illegality of the consideration and was not asked to do so. The question is not properly before this court.
Order affirmed.