31 Mo. 384 | Mo. | 1861
delivered the opinion of the court.
The instrument on which this suit is founded, it is insisted, is inadmissible as evidence, because it shows upon its face that the sale was made before its execution, and that the consideration was past and executed. It recites that “ whereas- W. C. Eindley did, on the 19th day of August, 1857, purchase' from Edward C. Robertson, the stock of goods,” &c.; and this language, it is maintained, expresses a past consideration, and there is nothing from which it could be inferred that there was any request from the surety. In support of this position we are referred to Parker v. Bradley, 2 Hill, 586, a case in some respects like this, where similar language in the instrument was held to denote a past or executed consideration; and the instrument being a mere
Be this as it may, however, notwithstanding the promise of the surety may appear to be founded on a past or executed consideration, he may' nevertheless be liable. For the consideration may have moved at the instance or request of the surety, and if so, the promise is not a naked one, but couples itself with the precedent request and the subsequent undertaking will be valid and binding upon him, and such request may be inferred from the circumstances and the nature of the transaction. (Theob. Pr. & S, p. 4; Moore v. Fox, 10 J. R. 243.) If, therefore, Findley received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the surety. No consideration need have passed directly between the plaintiff and surety. If it were one entire and original transaction, the consideration which supports Findley’s contract supported that of Guillett. Had, however, the contract between Findley and Robertson been executed and entirely past before Guillett became surety, so that his promise could not connect itself with the original contract, a distinct consideration would have been necessary. (See 8 J. R. 37; United States v. Linn et al., 15 Pet. 314.)
We are of opinion Findley was a competent witness for his co-defendant under the act of 1857. (Sess. Acts, p. 181.) This act says, a party may be examined on behalf of
The third instruction asked by the defendant was pi-operly refused, for reasons already stated in connection with the admissibility of the instrument of writing sued on.
Judgment reversed and the cause remanded;