Bank of New Hanover v. Bridgers

Smith, C. J., (after stating the case). There can be no question upon the findings by the jury, that the appellant *70 incurred, in signing the note with her husband, no obligation which could have been legally enforced against her, and it is argued that she is not bound by that given in renewal, because there was no existing liability, and no further consideration to sustain the contract. It is to be observed, that the notes now sued on, differ from the two former ones, in that the principal and deceased debtor is not a party to them, and in the extension of the time of payment for more than nine months, so that the new and superseding contracts have a consideration more than a mere naked promise to pay a subsisting debt, which as such, would be inoperative in creating a new obligation. The taking of the new security thus suspends the remedy upon the old, at least, as to those who united in executing it. “ There is no doubt that a negotiable bill or note,” says Mr. DaNIel, “ given for or on account of a cotemporaneous or pre-existing debt, and whether or not it be in renewal of a previous bill or note, suspends all right of action on such debt during its currency — that is, until it is dishonored by • non-acceptance or non-payment.” 2 Dan. Neg. Ins., §1272. “Where a man who has a judgment debt,” is the language of the Court in Baker v. Walker, 14 Exch, 468, “ takes from his debtor a promissory note for the amount, payable at a certain time, it must be inferred that he thereby enters into an agreement to suspend his remedy for that period, and if so, that is a good consideration for the giving of the note.” To the same effect are Putnam v. Lewis, 8 Johns., 389; Frisbie v. Larned, 21 Wend., 450. And so this Court held, that where one indebted by note gives a mortgage to the creditor for his security, upon the terms of an indulgence, there is an implied promise in accepting the mortgage to suspend action on the note. Harshaw v. McKesson, 65 N. C., 688; and it was also decided that the mortgage could not be foreclosed until the termination of the last credit. Same case, 66 N. C., 266. *71 A consideration to support a promise need not involve a benefit to the person promising ; it is equally sufficient when it consists in a detriment to the person to whom it is made. Again, the appellant is not in a more favorable condition to contest her liability1" by reason of executing the notes under the disability of coverture, than she would be if she had had no connection with them, and can it admit of question that she, when sui juris, and with restored capacity to act and bind herself like any other person, may contract to pay a debt due from others on a stipulated forbearance for a fixed time given to those who are liable? The case relied on by her counsel — Felton v. Reid, 7 Jones, 269 — is not applicable, for there was no new consideration to sustain a promise for which the feme was not liable, and this is true of any other person whose contract is founded on no consideration. Beyond and outside of this aspect of the case, the present plaintiff is an endorsee for value, taking, so far as the case discloses, without notice of the infirmity imputed to the instrument as emanating from the appellant. In such case, as a consideration is implied, the want of it cannot follow and defeat the notes, when the fact was unknown to the purchaser for value, or any indication sufficient to put him on. inquiry, the note not having matured. “ In an action by the endorsee against an original party to a bill,” the words are those of Mr. Geeenleab, in Yol. II., §172 of his work on Evidence, “ if it be shown on the part of the defendant, that the bill was made under duress, or that he was defrauded of it, or, if a strong suspicion of fraud be raised, the plaintiff will then be required to show under what circumstances and for what value he became the holder. It is, however, only in such cases that this proof will be demanded of the holder. It will not be required token the defendant shows nothing more than a mere absence or want of *72 consideration on his part.” 1 Dan. Neg. Inst., §§814 and 815; Pars. Bills, pages 218 and 219; French v. Barney, 1 Ired., 219. In the last case cited DANIEL, J., says: “ He being the holder, the law implies, until something be shown to the contrary, that he gave value for it, or rather, came fairly and legally by it.” More recently the same proposition is ruled in Tredwell v. Blount, 86 N. C., 33. It is true that the giving successive notes for the same debt, when not differing in legal effect, may be deemed cumulative securities for that debt, and the creditor may sue on a preceding one; provided, if the latter be a negotiable note or bill, he has it in his possession at the trial, to surrender, as held in Spear v. Atkinson, 1 Ired., 262. But the rule does not extend to cases like the present, where the new and substituted note varies essentially in its terms, and protracts the period of payment. This becomes the contract until it is broken, and then the plaintiff is at liberty to fall back upon his former security. In no aspect of the case, do we see how the appellant can claim exoneration from a liability assumed voluntarily, and when she had full legal capacity. We must therefore affirm the judgment, and it is so ordered. No error. Affirmed.