38 Ill. 208 | Ill. | 1865
delivered the opinion of the Court:
It is insisted, in support of the judgment below, that there was no guaranty to deliver the corn for which the receipt was given. Until rebutted, the production of such an instrument, raises a presumption that the receipt and guaranty were executed at the sjime time and as part of the same transaction. When read in evidence, without further proof, such would have been the legal effect of the receipt. If executed and delivered simultaneously, and before the corn was delivered to George Hossack, or if the corn was delivered in pursuance of the agreement, then the corn was the consideration and supported the receipt and guaranty. This was a question for the jury. Whether such was the consideration, or something else, was proper for the consideration of the jury, and should not have been taken from them by the instruction of the court.
It is, however, proper to consider whether there was evidence tending to show that there was, in fact, any consideration to support the guaranty of the delivery of the corn. It appears that Underwood held the receipt when he and Williams came to defendant in error to procure the guaranty or some other arrangement. It appears that Williams agreed that if the guaranty was made, he would extend the time for the payment of a debt Underwood owed him, for a year from that date. This seems to have been understood by all the parties and to have entered into the arrangement. Williams, according to the agreement, gave the time, and Underwood did not call for the corn or pay for it for the same length of time. The evidence also shows that George had disposed of Underwood’s corn and was unable to deliver it to him, that or other grain in its stead. It also appears that a third party was desirous of getting the receipt, and to prosecute George, and of this defendant in error was fully aware, and was no doubt solicitous that George should not be broken up in his business by proceedings on this receipt.
There was, therefore, an extension of time procured for Underwood to pay Williams, and the same time for George to procure.corn to replace Underwood’s, or to raise the money to pay him. By this arrangement Underwood was lulled into security, and did not take any steps against George, or transfer the receipt to others who would have done so, and time and opportunity were offered to George to dispose of any means he had, and leave the country before the expiration of the time. It is true that the evidence does not show an express agreement to extend time to George, but it may, we think, be inferred from the evidence. Williams, who was present, says it was the agreement that George was to pay Underwood a thousand dollars on the corn receipt within a few weeks, and the balance during the year. If this was true there can be no doubt that there was an extension of time by Underwood to George as to Underwood by Williams, and this witness is disinterested. It is true, that another son of defendant in error gives a different version of the matter, and it was for the jury to determine which they would believe.
All of the authorities agree that, an extension of time for the payment of a debt, or the performance of an agreement, forms a sufficient consideration to support a contract. If then, • there was an extension of the time for the delivery of the corn to Underwood, which George seems to have appropriated to his use, or to pay the money, there would be no doubt that defendant in error could not insist upon a want of consider ation.- And we think there was evidence tending to show such a consideration, and the jury should have been permitted to have passed upon its weight.
Again, we are of the opinion that if by the forbearance of Williams, to collect his debt from Underwood, by the mutual agreement of all parties, and as the consideration of the guaranty by defendant in error, it would render the contract of guaranty, legally valid and binding. And as to this, Williams’ evidence is clear and explicit, and certainly was of a character to require that it should be considered by the jury.
It was likewise urged that the guaranty was not in writing, and consequently void under the statute of frauds.'
In this case, defendant in error indorsed his name on the back of this receipt, as the evidence shows, for the express purpose of becoming a guarantor, and thereby to procure further time, for George, to deliver the corn or to pay the money. Under the agreement then made, the holder was authorized to write the contract of guaranty over his signature thus indorsed on the receipt. Moies v. Bird, 11 Mass. 436; Griswold v. Slocum, 10 Barb. 402; Story on promissory notes § 474 and note. And these authorities fully support the doc trine that this may be done when a third person indorses his name on an. instrument" not negotiable. On such an instrument he can not become liable as indorser; nor can he become liable as maker unless he places his name on the instrument at the time of its execution ; and as in such a case he manifestly intends to become liable in some capacity or other, to the holder, it can only be as a guarantor.
In this case defendant in error placed his name on the receipt as guarantor, if the evidence may be credited. And such being the contract, the holder was authorized to fill up the contract of guaranty over his signature, and this too, as we have seen from the authorities referred to, although the instrument was not negotiable. This then was such a contract or memorandum in writing' as would take the promise out of the operation of the statute of frauds. Considering the case in any view in which it is presented by this record, we are satisfied that the court below erred in taking the case from the consideration of the jury, by the instruction, and the judgment must be reversed and the cause remanded.
Judgment reversed.
