Breed v. Hillhouse

7 Conn. 523 | Conn. | 1829

Hosmer, Ch. J.

Although an agreement to forbear is not. specifically averred, otherwise than by the allegation that the plaintiff accepted the guaranty and actually forbore, yet under this declaration such agreement is provable. This mode of declaring is sanctioned by Wentworth, Chitty and almost all the approved writers on pleading ; (2 Chitt. Plead. 83.) and an averment of an agreement to forbear, has ever been considered as necessarily implied from the above allegations. In Lent & al. v. Paddleford, 10 Mass. Rep. 230. the above point was explicitly made and decided.

The agreement in question to forbear, was clearly proved, on a pr¡nc¡p]e 0f probable presumption, which harmonizes with common sense and is conformed to experience ; and both reason and experience bear concurrent testimony to the inference of a consideration in this case. The acceptance of the indorsed guaranty, by the plaintiff, and his consequent forbearance, prove the agreement in question, and are incompatible with any other supposition.

In respect of the demand and notice, the defendant’s promise to pay the note is sufficient evidence of these facts ; and stands good until the contrary is made to appear. Lundie v. Robertson, 7 East 231. Gibbon v. Coggon, 2 Campb. 188. Wood v. Brown, 1 Stark. Rep. 217. Pierson v. Hooker, 3 Johns. Rep. 68. Hopkins v. Liswell, 12 Mass. Rep. 52. Greenway & al. v. Hindley, 4 Campb. 52. The case of Trimble v. Thorne, 16 Johns. Rep. 152. is opposed to these decisions ; but so far as my knowledge extends, it stands alone and unsupported. It is a presumption of reason, sustained by the common experience of mankind, that “a man will not pay a debt which is not due, nor acknowledge the existence of a debt, to which he is not liable.” 3 Stark. Ev. 1253.

Besides, if a party entitled to notice, has knowledge of the want of due diligence, on the part of the holder of a note or bill, and promises to pay the debt, this is a waiver of the want of notice, Goodall & al. v. Dolley, 1 Term Rep. 712. Hopes v. Alder, 6 East, 16 n. Lundie v. Robertson, 7 East 231. Borradaile & al. v. Lowe, 4 Taun. 93. Stevens v. Lynch, 2 Campb. 332. Miller v. Hack, 5 Johns. Rep. 375. Martin v. Winslow, 2 Mason 241. Thornton v. Wynn, 12 Wheat. 183. Fotheringham v. Price's Exrs. 1 Bay 288. 291. Chitt. Bills 301—309. Now, if there was a want of due notice, the defendant knew it; for he was the person to be notified.

After all, the above questions, in this case, are merely speculative. The defendant’s guaranty was absolute, that the note should be paid within four years, by the maker, or that he would pay it himself; and demand and notice were not necessary in this, any more than in all other cases of absolute and unconditional engagements. The indebtedness of the defendant arose on the non-payment of the note ; and at this time, he became legally liable to pay it. Mason v. Pritchard, 12 East 227. Campbell v. Butler, 14 Johns. Rep. 349. Allen s. Rightmere, 20 Johns. Rep. 365. Upham v. Prince, 12 Mass. Rep. 14. The result is, that a new trial is not by me advised.

The other Judges were of the same opinion.

New trial not to be granted.