19 N.H. 572 | Superior Court of New Hampshire | 1849
The nature of Robbins’ undertaking in signing the note in controversy is sufficiently indicated by the terms of the paper itself. It would be improper to look beyond these for any explanation of the intention of the parties, if they be unequivocal in their expressions and are not qualified by any other evidence of as high character. If Robbins undertook and promised anything by signing the note, it was to pay the sum of money named therein to Grimes, or his order, absolutely, in the manner therein specified. That he was surety, merely, to another, and was not liable to pay but upon his default, did not distinguish the contract from all other joint and several contracts. The relation of surety, if made known to the party holding the note, laid the foundation for evidence to prove bis exemption or release from his undertaking, not ordinarily admissible in joint and several promises in which that relation does not exist, or is unknown. But there is no evidence that the rules of law will permit us to listen to, that having under written his name to a paper containing an express promise to pay money for value received, the engagement was that of a mere guarantor.
Was there a consideration for the promise sufficient to make it binding upon the party to perform it, in the unambiguous terms in which it was made? '
It is not entirely clear that the original consideration between Grimes and Ripley was not sufficient to sustain the promise of the defendant.
The defendant signed the note at the request of Ripley. In Horn v. Fuller, 6 N. H. Rep. 511, it was held that he who has given his note to another at the request of a third person, stands in a position like that- of the accepter of a bill; and in an action upon such note cannot deny that he had funds in his hands belonging to such third party.
But the contract of the plaintiff to assign to the defendant upon the payment of the note, the mortgage of the house in Hillsborough and the house in Hopkinton, by which it was
What may be the value of that security does not appear, and is wholly immaterial. For anything that does appear, it may amount to a full indemnity. Grimes’ agreement to assign that security is a sufficient consideration for the note. If he has deprived himself of the power of performing his agreement, he may be answerable in damages. No such fact, however, is shown by the case. There must therefore be
Judgment on the verdict.
