Anderson v. Norvill

McCulloch, J. This was a suit commenced before a justice of the peace against appellant and one M. C. Jones, on a promissory note signed by them. A trial was had before the justice, which resulted in a judgment against both defendants, from which Anderson alone took an appeal to the circuit court. At the next term of the circuit court, after the appeal was-taken, appellant moved for a continuance of the cause, for the reason, as he alleges, that no summons had been served on his co-defendant, Jones; whereupon appellee moved the court for leave to dismiss the suit as to Jones, which motion the court allowed, and overruled appellant’s motion for a continuance. This action of the court is assigned for error, but, for want of a proper preservation of the question by bill of exceptions, we .can not notice it. On the trial in the circuit court, appellant introduced evidence tending to establish two lines of defense: First, that he was only security on the note, and that the time for payment thereof had, for a valuable consideration paid by the principal to the payee, been extended without his consent. Secondly, that he signed the note as security after it had been signed and delivered by the principal, and after he had received the consideration therefor, and that there was no new consideration for his so signing it, wherefore he says that the note as to him is without consideration. On the part of appellee, the court helow, in the third and fifth instructions, directed the jury that if they believed from the evidence that appellant signed the note, they should find for appellee, unless they should further find from the evidence that appellee agreed with Jones, for a valuable consideration, to extend the time of payment without the consent of appellant. These instructions narrowed appellant’s defense to a single point, when his proof tended to show another ground of defense equally available. The identical point here involved was decided by this court in Cassell v. Morrison, 8 Bradwell, 175, wherein we held, that where a note had been fully executed and delivered, and subsequently thereto a new party signed it as surety, a new or inde pendent consideration was necessary to make it obligatory upon him. We see no reason for holding differently in the present ease. The question ought therefore to have been left to the jury to say, whether or not appellant had established this line of his defense by the proofs introduced. The refusal of the court to give the first instruction asked by appellant is also assigned for error. The proposition of law therein stated is substantially this: that if appellant signed the note after its execution and delivery by the principal maker, and after he had received the consideration therefor, and that no further or new consideration was paid to or by either of the parties for signing it by Anderson, then the note as to him was without consideration. This proposition is too limited. It is not necessary, in order to constitute a sufficient consideration for the contract of a surety under these circumstances, that a new consideration shall be paid to or by either of the parties for such signing, but any benefit accruing to the principal or the surety, or any disadvantage to the payee, would he a sufficient consideration; or, as we intimate in Cassell v. Morrison, supra, under certain circumstances the original consideration for the note may, by proper proof, be shown to be a sufficient consideration for the subsequent undertaking of the surety. But, for the errors indicated in giving the third and fifth instructions for appellee, the judgment will be reversed and the cause remanded. Reversed and remanded.