62 Mass. 85 | Mass. | 1851
It is very clear that the plaintiff could not recover against the defendant on the first count charging him as an original promisor, because the evidence proved that the defendant’s name was not put on the back of the note until several weeks after the note was given. Union Bank of Weymouth and Braintree v. Willis, 8 Met. 504; Benthall v. Judkins, 13 Met. 265.
As the defendant did not partake in the original consideration of the note by becoming a party to it, at its inception, the plaintiff wras bound to show a valid consideration for the undertaking of the defendant. For this purpose he relied on his three last counts, and offered evidence tending to show a forbearance to sue John E. Stanley, the original promisor. But it did not appear that there was any agreement to give time to the original promisor. On the contrary, his liability to pay the note on demand remained unchanged. The only consideration therefore for the defendant’s promise was the preexisting debt of John E. Stanley, with which the defendant had no concern. But a mere forbearance to sue, without any promise or agreement to that effect, by the holder of a note, forms no sufficient consideration for a guaranty. It is a mere omission on the part of the creditor to exercise his legal right, to which he is not bound
The exception, founded on the remark of the judge, as to the insufficiency of the evidence to prove an agreement on the part of the plaintiff to forbear to sue the original promisor, cannot be sustained. The question, whether there was such an agreement, was left by the court to the jury, who returned a verdict for the defendant; and although there may have been, upon the facts reported, sufficient evidence from which the jury might well have inferred such agreement to forbear, still the remark of the judge, being only a comment on evidence,