21 Mo. App. 124 | Mo. Ct. App. | 1886
delivered the opinion of the court.
This is an action on a promissory note signed by the defendant and one Smith.
The answer contains four separate defences. The substance of the first two is to the effect, that the note was given for an antecedent debt of Smith to the plaintiffs, and was made and delivered to the plaintiffs by Smith as' and for his individual note. That the defendant long after such delivery signed the note as surety for Smith and without any new consideration. The third defence relied on is that by an agreement between the plaintiffs and Smith, without the defendant’s knowledge and consent, the payment of the note was extended, whereby
The plaintiffs demurred to the entire answer, as constituting no defence. The court sustained the demurrer and the defendant, electing to stand by his answer, judgment was rendered against the defendant.
The third and fourth defences are not well pleaded. 'To discharge a surety, by reason of extension of time of payment, the creditor must do some act by which he deprives himself of the right to proceed at law for the collection of the debt. Rucker v. Robinson, 38 Mo. 154; Hosea v. Rowley, 57 Mo. 357. It does not appear that the plaintiffs have done so in this instance. Nor can the fact aid the defendant, that all parties, subsequently to the creation of the debt, agreed that it should be paid out of a particular fund, since it does not appear that the plaintiffs had any control over the fund.
The first and second defences, however, are substantially good.
That a consideration moving to a third person is sufficient to support a written promise to pay, is conceded. All accommodation paper rests upon such consideration. In such a case, however, the consideration must pass upon the faith of such written promise. If the consideration has passed entirely prior to the promise, and the promisor becomes a mere surety on paper already delivered, his promise is not enforceable, being supported by no consideration. Pfeiffer v. Kingsland, 25 Mo. 66; Cook v. Elliott, 34 Mo. 586; Williams v. Williams, 67 Mo. 662.
Applying this rule to the facts set up in the answer it will appear that it sets up a good defence. It states
If these facts are not true, the plaintiffs should have replied. Since their demurrer admits the truth of the facts pleaded, and, therefore, admits that the defendant’s signature was obtained without any new consideration, after the delivery of the note, and as an independent contract, we can not, in the face of such admission, presume that such signature was cotemporaneous with the execution of the note by Smith.
It results that the action of the court was proper in sustaining the plaintiff ’ s demurrer to the third and fourth defences pleaded, but erroneous in sustaining the demurrer to the first and second defences.
The judgment is reversed and the cause remanded.
