Pfeiffer v. Kingsland

25 Mo. 66 | Mo. | 1857

Scott, Judge,

delivered the opinion of the court.

A sufficient consideration, or recompense, or motive, or inducement, to make the promise upon which a party is charged is of the essence of a contract not under seal except in cases where the statute law has introduced a different rule. A promise by a party, even in writing, to pay a debt already incurred by a third person • is not available if there be no new consideration. An undertaking to answer for the debt of another, though in writing, is void if no consideration move between the plaintiff and defendant, either of forbearance or otherwise. A guaranty of a note, like any other promise, without a consideration, is void. But if the undertaking is eotemporaneous with the creation of the original debt, the guarantor |g presumed to participate in the original consideration. (Leonard v. Vredenberg, 8 Johns. 29.) It is entered of record “ that it is agreed that Drummond proved that no consideration passed between plaintiff and defendants for the guaranty sued on.” The guaranty was not made until fhe time of performing the act guarantied was about to expire, long after the original contract had been made. There is no evidence showing that after the date of the guaranty the plaintiff paid any money to Drummond on the faith of it; had such been the fact the case might have been different. It appears that all the money Drummond received was paid to him before the date of the guaranty. If any money was due Drummond he had a remedy in his power for any breach of contract on the part of Drummond.

Judge Ryland concurring,

the judgment will be affirmed;

Judge Leonard absent.