Robinson v. Larabee

The opinion of the court was delivered by Rowell, J. ' The only question raised at the trial below was as to the Statute of Limitations, the plaintiffs conceding that the note was barred as to the defendant H. A. Larabee — who alone defends — unless saved by a payment thereon by him, made under a composition in bankruptcy with his creditors, or by his guaranty thereof, given in the circumstances disclosed by Mr. Crane’s testimony. The action is not brought upon the guaranty, as claimed [654] by defendant, but upon the note itself; and as only the guaranty is now relied upon to remove the statutory bar, the only question is whether it is sufficient for that purpose. It is in these words: “ I guarantee the within note, principal, and interest, at six per cent, annually, from this date.” Of itself, disconnected with the circumstances in which it was given, it is obviously sufficient. It evinces a distinct and an unqualified acknowledgment of the note as subsisting and still due and a willingness to remain liable upon it. It is supported by a sufficient consideration, namely, the moral obligation still resting upon him to pay it notwithstanding his composition. Farmers & Mechanics’ Bank v. Flint, 17 Vt. 508. But the defendant claims that it was given in contravention of the Bankrupt Act, and induced by the fraud and threats of Robinson, and therefore void. As to both of these points, it is sufficient to say, that as neither party wished to go to the jury on any question, it was for the court to direct a verdict on such a state of facts as it regarded proved by the evidence — Davis v. St. Albans, 42 Vt. 585 — and now the verdict will be upheld if there was any evidence to sustain it, as it is. clear there was; for Mr. Crane’s testimony is quite as consistent with the idea that the guaranty was given solely for the legitimate purpose of obtaining Robinson’s receipt for his percentage, as a means of proof of payment before the Bankruptcy Court, as that it was given in consideration of an agreement in contravention of the Bankrupt Act or by reason of any threat of Robinson’s. Judgment affirmed.