Hesser v. Steiner

The opinion of the Court was delivered by Rogers, J. Although we are not without a strong impression that it never entered into the mind of the defendant to make himself personally liable for the debts of his son, and that the agreement only extended to a promise that he would attend to the settlement of his affairs and pay the amount collected over to his creditors, yet we perceive nothing in the record which will justify the court in reversing the judgment. If the case came before us on a motion for a new trial, the result might be different, as we are of opinion, that to make a. man answerable for the debts of another, the testimony should be more clear, definite, positive and unambiguous, than the testimony on which the plaintiff relies. There is, however, nothing in the charge, to which exception can be taken. The law is stated by the Judge in a clear, plain, and intelligible manner, and if the defendant is injured, it is not the fault of the court. There is some evidence, that the defendant undertook to pay the plaintiff, if he would forbear to sue his son, some testimony that Hesser constituted'Anspaeh his agent to make the contract, and enough to justify the court in leaving it as a fact to be decided by the jury, whether the defendant might have collected his son’s debts. The only part of the charge which created the least hesitation, was that part of it, where the court instructed the jury that'James B. Hesser, being a minor when the note was given, and the note being negotiable, and given in the course of trade and not for necessaries, furnished no defence to the suit. But in this point we are also satisfied. It is useless to make a parade of authorities. They have all been cited at the bar. They prove, that the note, although negotiable and given under the circumstances stated, is not void, but voidable, and that such a note is a sufficient consideration, with an agreement to forbear to sue it, for a promise to pay by a third person. It bears a sufficient consideration on its face, and is therefore the foundation of a promise ; for non constat that infancy will be pleaded, and infancy, the Act of Limitations, and the like, can only be taken advantage [478] of by the infant himself, or persons to be affected by it. There is nothing in the suggestion, that because the note was not due at the time the promise was made, it is without consideration. It is enough it was due when the suit was brought. There is nothing in the other exceptions which I have examined, which deserves a particular notice. We shall, therefore, dismiss them with the remark, that they have not been sustained. Judgment affirmed.