Nabb v. Koontz

Tuck, J., delivered the opinion of this court. There is no question, on this appeal, arising from the supposed failure of consideration for Mrs. Nabb’snofe to Koontz. The court, by granting the first prayer of the defendant, submitted that inquiry to the jury, who found the issue against him. The second and fourth prayers present, substantially, one ground of defence, to wit: whether there was such a consideration in writing for the defendant’s undertaking to pay his mother’s note, as gratifies the statute of frauds? ft is well settled in England and in Maryland, and most of the States, though a different construction has been adopted in others, that the consideration for a promise or agreement to pay the debt of another, must be expressed in, or gathered from, the writing.

Wyman vs. Gray, 7 H. & J., 409 . Elliott vs. Giese, Ibid., 457. The appellee’s counsel, conceding this position, insists, that where the written promise of the principal debtor sets forth or imports a consideration, and the undertaking of the grantor refers to the original indebtedness, and is made and delivered to the creditor at the same time, this objection does not apply. As there is evidence of the matters relied on to support this view of the case, the decision must depend on the legal soundness of the distinction here taken.

Elementary works of the highest character assert, in the plainest terms, the doctrine now advanced on the part of the appeilee, and we have examined all the cases referred t.o by them, t.o which access could be bad, to ascertain how far it has been sanctioned by jurists, whose decisions have been received with great consideration, if not accepted as authority, by the courts of this State. ²⁸⁸ In 1 Parsons on Cont., 496, it is said: “The rule of law is this, if the original debt, or obligation is already incurred or undertaken, previous to the collateral undertaking, then there must be a new and distinct consideration to sustain the guaranty. But if the original debt or obligation be founded upon a good consideration, and at the time when it is incurred or undertaken, or before that time, the guaranty is given and received, and enters into the inducement for giving credit or supplying goods, then the consideration for which the original debt is incurred, is regarded as a consideration, also, for the guaranty.” See, to the same effect. Smith’s Merc. Law, 447, note, and cases cited, (Ed. of 1847;) also, Chitty on Cont., 448, note, (Ed. of 1855.) Story on Prom.

Notes, secs. 458, 459. 2 Robinson’s Pr., 285. Many cases are referred to in support of this position, from which we select the following. In Leonard vs. Vredenburg, 8 Johns., 23 , it was proved, that one Johnson applied to the plaintiff for credit, which was refused, unless security could be offered. Upon which he made his promissory note, for value received, on which the defendant wrote and signed, “I guaranty the above,” and the same being presented to the plaintiff he delivered the goods.

Kent, Ch. J., said, “The promise (of the defendant) was made at the time of the original negotiation between the plaintiff and Johnson. It was incorporated with that contract, and became an essential branch of it. The whole was one single bargain, and the want of consideration, as between the plaintiff and defendant, cannot be alleged.

If there was a consideration for the entire agreement, (and Johnson’s note purporting to be given for value received, was evidence of it,) that consideration was the aliment for the defendant’s promise.” . In Manrow vs. Durham, 3 Hill, 584 , Nelson, Ch. J., said, “Where the guaranty and note are cotemporaneous, you may resort to the note to sustain the consideration of the guaranty.” And Bronson, J., in the same case, “Where, at the time a note is made, and as part of the same transaction, a third person endorses an absolute guaranty upon the ²⁸⁹ note, he will be liable in some form for tiie payment of the money Both instruments taken together make but one contract, and the consideration which upholds the one will support the other.” See, also, Bailey vs. Freeman, 11 Johns., 221 . Nelson vs. Dubois, 13 Johns., 175 .

Wheelwright vs. Moore, 1 Hall, 201, 648 , and 2 Hall, 143 . There are several other cases in New York affirming the principle. And so in 20 Maine, 28, Huntress vs. Patten. 29 Maine, 79, Gillighan vs. Boardman. How vs. Kemball, 2 McLean, 110. 14 Ill., 237 , Klein vs. Cussier.

The same law prevails in Massachusetts. In Bickford vs. Gibbs, 8 Cush., 154 , where the defendants had signed the following on a promissory note: “We guaranty the payment of the