Cushing v. Gore

Parker, C. J. It is objected by the counsel for the defendants, that there was no legal consideration for this note ; there being merely a liability, on the part of the plaintiff, to pay the notes which he had endorsed. We think, however, that such a consideration is good, and sufficient to support an express promise. Whether the plaintiff should be called upon, or eventually be obliged to pay, was contingent when he endorsed the defendants’ notes; but there is no doubt, if he had refused to endorse them without receiving a promissory note of the defendants, to enable him to secure himself when danger should be apprehended, the defendants would be prevented from denying the validity of their promise, (a) * In the present state of the mercantile world, it would excite great surprise, if we were to decide that a note deliberately given to an endorser, for the very purpose of enabling him to secure himself against the effect of his endorsement, would not answer the purpose for which it was intended, (b) The cases cited to the contrary are principally of grants, the consideration of which being some liability of the grantee, they have been held void. We do not think the principle applies to mercantile contracts ; and we apprehend that those cases have relation to the statutes of bankruptcy or of frauds, the grants being considered void against [73] creditors. The case from Dyer was decided with a view to the bankrupt laws. But if there were any doubt of the principle, to the extent mentioned, we think that, when an endorser lias, either expressly or impliedly, undertaken to pay the note by him endorsed, there can be no question that such undertaking is a good and valuable ran sideration for a promissory note. The case finds that it was understood between Grafton and the plaintiff, that the latter was to pay the notes he had endorsed. There was no direct evidence of this ; but the jury have inferred the fact, and they had a lawful right so to do. It might be inferred, we think, from the mere fact of a note having been given with a view to cover those endorsements; and had the plaintiff failed to pay the notes as they became due, so that the defendants had been troubled or put to expense, we see no reason to doubt that they might have maintained an action against them upon an implied promise. In the case of Stevens vs. Bell, (3) it was decided that a grant or conveyance in trust for sureties was not void for want of consideration. There is no reason why a promissory note, given for the same purpose, should have a different rule applied to it. In either case, if the creditor recover more than will indemnify him, he may be holden as trustee for other creditors. * In the same case, it was decided that an attempt to prefer one creditor to another is justifiable. Indeed, it is the necessary consequence of our attachment laws, which give to each creditor a right to take care of himself; and nothing is more common than for debtors, on the eve of failing, to assign property for the security of endorsers, sureties on bonds in the custom-house, and others who are thought to be entitled to favor. Such assignments are held valid here ; nor is it an objection that the value of the property assigned exceeds the sum for which the assignee is liable, unless the transaction should appear to be fraudulent, (a) On the whole, we see no objection to the direction of the judge, nor any insufficiency of evidence to support the verdict. The transaction appears to have been bona fide on the part of the plaintiff. He has recovered for no more than the amount of the notes endorsed by him, and which he has actually paid. If he had recovered more, he might have been charged, as trustee, for the surplus ; or perhaps, if he had taken judgment knowingly for more than was [74] thus due to him, and had levied his execution for the amount, this might have been evidence of collusion, which might avoid his judgment, in favor of other creditors. With respect to the check, considering the circumstances under which it was received, both parties knowing that there were no funds in the bank, and it not being intended to be presented there, we think it may well be considered as evidence of money borrowed, and recoverable on one of the money counts. (b) Judgment on the verdict. Footnotes [(a)] If no damage be sustained, there is no consideration for the note. — Knapp vs. Lee, 3 Pick. 452 — Hill vs. Buckminister, 5 Pick. 391.—Amherst Academy vs. Coules 6 Pick. 427. —Mills vs. Wyman, 3 Pick. 207. [(b)] Vide Whitman vs. Leonard, 3 Pick. 177. [(3)] 6 Mass. Rep. 339. [(a)] Vide Whitman vs I canard, 3 Pick. 177. [(b)] 6) Ball vs. Mien, post, 433. — Ellis vs. Wheeler, 3 Pick. 18.