Briggs v. Downing & Matthews

Day, J. 1 SURETY: note. This case differs from Dickerman v. Miner, 43 Iowa, 508, and Hamilton v. Hooper, 46 Iowa, 515, in that the -amendment to the answer in this case alleges the defendant Phillips signed the notes at jnstance and request of the other makers, Downing & Matthews. In the cases above referred to, the sureties signed the notes without the consent or knowledge of the principal, and it was held that the effect of such signing was to discharge the principal and bind the surety as the maker of a new note. The answer in this ease alleges that the defendant Phillips signed the notes after they had been executed by the principals, and delivered to and accepted by the plaintiff. The undertaking of defendant was, therefore, a collateral one. Credit had already been extended to the principals. There must, therefore, be some new consideration, either of advantage to the defendants or prejudice to the plaintiff, to support the promise of the defendant, Phillips. See Harwood v. Kinsted, 20 Ill., 367 (374); Tenny v. Prince, 4 Pick., 385; S. C., 7 Pick., 243; Leonard v. Indenburg, 8 Johns. R., 29 (37), and cases cited; Clark v. Small, 6 Yerger, 418. The undertaking of the defendant being in writing imports a consideration. Still, it is competent for the defend [552] ant to aver and prove that there was no consideration. The answer alleges that there was no consideration for defendant’s promise, and, if this allegation be proved, defendant should be discharged. The demurrer should have been overruled. Reversed.