Elton v. Johnson

Storrs, J. The question in this case, is, whether the evidence of Jones, in connexion with the note and guaranty produced on the trial, conduced to prove the defendant’s agreement, as stated in either of the two last counts of the declaration. The consideration, as stated in the fourth count, is [259] the plaintiff’s promise of forbearance to collect said note of the makers, for twelve months from the date of said guaranty; and that stated in the fifth count, is the plaintiff’s promise of forbearance for a reasonable time from the date of said guaranty. That forbearance for some time, was the consideration of the defendant’s promise, admits of no doubt, from the testimony of Jones. That testimony certainly does not tend to show, that entire forbearance, which would amount to a relinquishment or discharge of the liability of the makers, was contemplated by the parties: it is obvious, that security only was sought on the one part, and forbearance only on the other. Nor does it furnish a fair inference, that the forbearance was to be merely at the option or pleasure of the plaintiff. Nothing of this kind was mentioned, or alluded to, in the conversation to which the witness testifies; and it would be opposed to the whole drift of the negotiation between the parties and the object they had in view. The agreement, therefore, must have been for forbearance, either for some fixed and definite time, or for what should be a reasonable time. Which of these was the case, the witness does not undertake or profess to be able explicitly to state. The import of his testimony is, that in the interview at which he was present between the plaintiff, the defendant, and the makers of the note, after the makers had offered, and the plaintiff had consented to accept, the defendant as security for the note, a negotiation commenced between the plaintiff and defendant, on the subject of the time during which the collection of it from the makers should be postponed;—that the plaintiff proposed a shorter time than the defendant acceded to;-that there was further conversation on the subject, not recollected by the witness; and that it resulted in the guaranty being given by the defendant, and accepted by the plaintiff. The witness further stated, that he had no recollection of any agreement to wait any specific time, but inferred from the circumstance that the guaranty was to continue a year, that the makers of the note were to be relieved for that time, although he could not testify to any such agreement. Disregarding his inference as being merely his opinion and reasoning on the subject, this testimony clearly conduces to prove, that the plaintiff agreed to forbear for some time; and that such forbearance was the consideration of the defend [260] ant’s guaranty; but that there was no agreement to wait any specified time. The legal construction of such an agreement would be, that the forbearance should be for a reasonable time; and we think, that the most rational inference from the testimony in question, is the one which appears to have been drawn by the judge below, that no fixed time was ultimately agreed on, during which the plaintiff should indulge the makers of the note; but that the understanding was, that it should be such as would be reasonable, under all the circumstances of the case. The last count, therefore, was supported by the evidence. The objection to the evidence offered by the plaintiff for the purpose of proving notice to the defendant of the non-payment of the note, is withdrawn, and need not therefore be considered. A new trial ought not to be granted. In this opinion the other Judges concurred, except Hinman, J., who gave no opinion. New trial not to be granted.