Page v. Sadler

Anderson, J., delivered the opinion of the court. The appellant, W. E. Page, sued the appellee, B. 0. Sadler, in the circuit court of Yazoo county to recover on the written promise of the latter to pay the debt of a third person. At the conclusion of appellant’s testimony on motion of the appellee the same was excluded and a verdict directed for appellee, from which appellant prosecutes this appeal. The questions involved arose out of the following facts: Lefler was indebted to Johnson in the sum of four hundred twenty-one dollars and twenty-six cents and for the purpose of paying the same drew a draft for that amount in favor of Johnson on the appellant, which draft appellant paid, and thereby Lefler became indebted to appellant for that amount. Thereafter appellee, Sadler, became indebted to Lefler in the sum of five hundred dollars. The appellant was pursuing Lefler for the purpose of collecting from him the amount of said draft so drawn. Learning that appellee was indebted to Lefler [464] iu the sum of five hundred dollars appellant approached 'appellee and requested him to pay said indebtedness so held by appellant against Lefler. Appellant agreed to do so provided he was given further time, to which the appellant consented. Appellant at the time had in his possession said draft drawn on him by Lefler and by him paid to Johnson at the bottom of which he wrote the following, which was signed by appellee: February 24, 1918. “On or before the 1st and 15th day of April I will pay this bill to W. R. Page for C. E. Lefler as I owe him this money. [Signed] “B. 0. Sadler.” This was the obligation which was the basis of appellant’s suit against appellee. The said arrangement between appellant and appellee by which the appellee promised to pay appellant the debt due the latter by Lefler was without the knowledge or consent of said Lefler. It is argued that the trial court was justified in excluding appellant’s testimony and directing a verdict for appellee because appellee’s said promise to pay was without consideration and therefore had no binding force. On the other hand it is contended by appellant that the forbearance given appellee for the payment of said indebtedness was a sufficient consideration to uphold the appellee’s promise. As we view it the case of Hall v. Clopton, 56 Miss. 555, before the court the first time, as reported in 51 Miss. 482, is squarely in point in favor of appellant’s contention in the case. James Haughton promised to pay Hall the debt of his brother Lafayette Haughton if Hall would forbear suit against the latter for a certain time. Forbearance was actually agreed to and given, which was done without the consent of Lafayette Haughton and over his protest. It was contended by James Haughton that there was no consideration for said promise on his part. The court said among other things: [465] “If James Haughton signed the notes in consideration that suit should be forborne against Lafayette, and suit was actually so forborne, this is sufficient to support the contract, and we know of no principle or authority which renders it void because Lafayette had not requested or assented to it. It was entirely competent £or James to bargain with Hall, when informed that suit was about to be instituted against his brother, that he would become a guarantor of the notes if time should be given. The loss of time to Hall, and the consequent risk thereby incurred, is a sufficient consideration to support the contract, without regard to whether there was any benefit derived, either by James or by Lafayette. Loss, or the danger of loss, to the creditor is a consideration as sufficient as benefit to the debtor.” The effect of appellant’s evidence was to show that appellee promised -to pay the debt of Lefler provided appellant would delay the day of payment. This appellant agreed to, and thereupon the appellee signed the written promise sued on which fixed the day of payment nearly two months off. We are of opinion therefore that said promise was based on a sufficient consideration. It is contended by appellee that his promise to pay said indebtedness is void because it was made on Sunday. This question is first presented here in this court. It was not presented in the court below by the pleadings, nor was there any evidence introduced to show that the date of the promise, February 24, 1918, was on Sunday. The calendar, however, shows that in fact February 24, 1918, was Sunday. Appellant argues that this question cannot be raised in this court because it is not presented by the pleadings, and to support the contention relies on Herndon v. Henderson, 41 Miss. 584, in which it was held that evidence that a contract sued on was executed on Sunday was not admissible under the general issue without notice. Section 744, Code of 1906 (section 527, Hem [466] ingway’s Code), provides among other things that if a defendant desires to prove under the general issue any affirmative matter he shall give notice thereof in writing' annexed to or filed with his plea; otherwise, such matter shall not be allowed to be proved on the trial. The defense that the contract in question was made on Sunday is an affirmative defense, and could not be- proved under the general issue without notice as provided by the statute. The question is ruled by Herndon v. Henderson, supra. Reversed and remanded.