20 Ill. 367 | Ill. | 1858
Promises and agreements, as between the parties, to be binding, must be made upon a legal consideration.
And this consideration is equally necessary to support the promise of mere sureties and guarantors. Where the original agreement is that sureties shall sign it, and a guaranty be given, the original consideration between the parties will support the promise of the surety or guarantor. Camden et al. v. McKay et al., 3 Scam. R. 441; Klein v. Currier, 14 Ill. R. 237; Neelson v. Sanborne, 2 N. Hamp. R. 413; Bailey v. Freeman, 11 John. R. 221; Wheelwright v. Moore, 2 Hall R. 148 ; Flagg v. Upham, 10 Pick. R. 147.
Guaranties, being collateral undertakings for the debt of another, should not only be in writing to be binding under the statute of frauds, but, according to the English rule laid down on this subject, the consideration as well as the promise must be expressed in the writing. Main v. Warlters, 5 East R. 10; Saunders v. Wakefield, 4 Barn, and Ald. R. 595; Jenkins v. Reynolds, 3 Brod. and Bing. 14.
But this has not been followed in many of the States—parol evidence being admitted to show the consideration. Packard v. Richardson, 17 Mass. R. 122; Leonard v. Vredenburgh, 8 John. R. 29 ; De Wolf v. Raband et al., 1 Pet. R. 501.
Still, whether the consideration be in the writing signed by the surety or guarantor, or be shown by parol evidence, the original consideration between the parties, with some exceptions introduced by statute, as when furthér security is given by an officer, an administrator or guardian, as in Ammons v. The People, 11 Ill. R. 7, will not support the promise of one who subsequently signs the obligation as surety or as a guarantor. A new consideration must be shown. Clark v. Small & Brown, 6 Yerg. R. 418; 8 John R. 29; Tenny v. Prince, 4 Pick. R. 385; Same v. Same, 7 Pick. R. 242.
That.consideration may be a subsisting legal obligation to do the same thing promised, or a moral obligation to discharge an old legal one not enforcible, Cook v. Bradley, 7 Conn. R. 57; or some matter of advantage to the promissor, or the debtor, or of detriment to the promissee—as forbearing suit, or other legal remedy-or redress—Chit. on Cont. 35 to 38—whether commenced or not—id. 36 a; the waiver of a legal.right at the request of another, id. 33, note 2; or the waiver of a tort, and with agreement to prove under a bankruptcy. Brealey v. Andrew, 2 Nev. & Perry R. 114; S. C. 7 Adol. & Ellis R. 108. And a guaranty may have a retrospective operation, so as to embrace debts already contracted, where it clearly appears that such was the intention of the parties. Abrams v. Pomeroy et al., 13 Ill. R. 133.
Tested by these principles, and there appears ample evidence to sustain the promise of defendant on signing this note as surety, though signed a day or so after its execution by Johnson.
There can be no question that he obtained credit for the mare, and induced plaintiff to take the note, by false and fraudulent representations, proved. be to such by the very person to whom he referred plaintiff to sustain his credit and coroborate his statements*.
Upon making discovery of this fraud, and being informed of Johnson’s intention of leaving the country, plaintiff determined to rescind the contract for the fraud, and reclaim his mare. This he immediately proceeded to do, charging Johnson with the fraud and design of leaving as he was informed.. Johnson proposed to give security—when defendant, on being informed of all these circumstances, agreed to and did become his surety, declaring that it was not true, and was intended to injure Johnson. We cannot doubt plaintiff’s intention and right to redress his wrong, and that he would have done so but for the interposition of defendant, and that defendant interposed with a view to arrest that course, with a full knowledge of all the facts. Plaintiff’s forbearance to pursue his redress while in his power, would cause him the loss of his mare, if not permitted to enforce the promise upon faith of which he relied.
This state of things was manifest from all the circumstances of what was said and done, and needed no agreement in terms to be mentioned, as declared in the last instruction for defendant. We think the instruction erroneous, and calculated to mislead the jury, by impressing upon them the idea that the facts showing an intention to bring suit, and a forbearance to do so, must appear by express agreement. It may appear by implication from the circumstances, the declarations and acts of the parties, as well as by agreements.
We can lay no stress upon the want of a formal offer to return the note at the time plaintiff reclaimed the mare.
We think the jury have clearly mistaken the rights of the plaintiff, and the liability of the defendant, under this evidence, and that a new trial ought to be granted.
Judgment reversed and cause remanded for a new trial.
Judgment reversed.
We concur in the judgment reversing the judgment below, and in the opinion.
O. C. Skinner,
J. D. Caton.