Ives v. McHard

Mr. Justice Walker delivered the opinion of the Court: The facts being found by the Appellate Court, we are precluded from their consideration further than to determine whether the law has been properly applied to them. It is claimed that there was a material variance between the averments in the declaration and the evidence. It is insisted that there were three things averred as a consideration upon which appellant guaranteed the payment of the note: First, that time of payment was extended on the Dennison note; second, an extension on the Ives and Dennison note; and that only legal interest should be collected on the Ives and Dennison note. On an examination of the evidence, we are satisfied it tended to prove all three of these averments of the consideration for the guaranty. We are, therefore, unable to see there was a variance. It is next urged that the instructions are faulty in failing to instruct the jury that all of these were required to be proved. The rule is, that if various considerations are averred and proved, some good and some insufficient, one sufficient consideration will support the contract. The extension of time for the payment of an antecedent debt is held a sufficient consideration to ¡support a contract. The extension of time on the Dennison note was all that was required, . as that was the note the payment of which was guaranteed. by appellant, and appellees’ instructions announce this rule. But it is insisted that the instructions are faulty because they omit the requirement of proof of the extension of time on the Ives and Dennison note, and that it was agreed that only legal interest should be collected on it. Appellant, in his instructions which were given, claimed that an agreement to extend the time for paying the Ives and Dennison note was not a sufficient consideration to support the guaranty, and that under the law only legal interest ' could be collected on that note. An agreement not to collect more than legal interest formed no consideration to support the guaranty by appellant to pay the Dennison note, and if his propositions are true, and he will not he permitted now to controvert them, appellee was not bound to prove illegal or insufficient considerations. According to appellant’s theory, the only material consideration averred was the extension of the time for payment of the Dennison note. The jury were, by appellees’ instructions, required to find that averment proven. The jury are, only required to find that the material averments are proven, and it was not error to so instruct them. We are, therefore, of opinion that there was evidence on which to base the instructions, and that there was no error in giving them. The judgment of the Appellate Court is affirmed. Judgment affirmed.