Robertson v. Findley

Ewing, Judge, delivered the opinion of the court. The instrument on which this suit is founded, it is insisted, is inadmissible as evidence, because it shows upon its face that the sale was made before its execution, and that the consideration was past and executed. It recites that “ whereas- W. C. Eindley did, on the 19th day of August, 1857, purchase' from Edward C. Robertson, the stock of goods,” &c.; and this language, it is maintained, expresses a past consideration, and there is nothing from which it could be inferred that there was any request from the surety. In support of this position we are referred to Parker v. Bradley, 2 Hill, 586, a case in some respects like this, where similar language in the instrument was held to denote a past or executed consideration; and the instrument being a mere [388] guaranty on the part of the sureties, was held void under the statute of frauds. In that case, however, it was observed by the court that “ the main difficulty arose from the omission of the defendants (sureties) to affix their seals to the instrument in question, which bore in other respects the form of a common bond”; and being but a simple contract, it was necessary under the statute of New York that the consideration be expressed. Had it been under seal, however, the inference from the decision is that it would have been valid as importing a consideration. By reason of the omission to express in the body of the instrument hero sued on that it was sealed, although seals are affixed to the signatures, it is not technically a bond. But this is not necessary, we apprehend, to impart a consideration in this state. Be this as it may, however, notwithstanding the promise of the surety may appear to be founded on a past or executed consideration, he may' nevertheless be liable. For the consideration may have moved at the instance or request of the surety, and if so, the promise is not a naked one, but couples itself with the precedent request and the subsequent undertaking will be valid and binding upon him, and such request may be inferred from the circumstances and the nature of the transaction. (Theob. Pr. & S, p. 4; Moore v. Fox, 10 J. R. 243.) If, therefore, Findley received a sufficient consideration to uphold the promise on his part, it was sufficient to bind the surety. No consideration need have passed directly between the plaintiff and surety. If it were one entire and original transaction, the consideration which supports Findley’s contract supported that of Guillett. Had, however, the contract between Findley and Robertson been executed and entirely past before Guillett became surety, so that his promise could not connect itself with the original contract, a distinct consideration would have been necessary. (See 8 J. R. 37; United States v. Linn et al., 15 Pet. 314.) We are of opinion Findley was a competent witness for his co-defendant under the act of 1857. (Sess. Acts, p. 181.) This act says, a party may be examined on behalf of [389] his co-plaintiff or co-defendant, as to any matter in which he is not jointly interested or liable with such co-plaintiff or co-defendant, and as to which a separate and not a joint verdict or judgment can be rendered. The defence relied on by G-uillett concerns him alone, goes to his personal discharge, and is one in which his co-defendant is not jointly interested or liable with him. The matter set up, if sustained, would not affect the liability of Findley; the transaction as to him will remain xxnimpeached, and his obligation remain in full force. Like the plea of infancy, or forgei’y of the signature, the validity of the instrument as to the other party will, of course, be left unimpaired. It is scarcely necessary to add that the matter as to whicbkFindley was called to testify was one also in which a separate and not a joint judgment could be rendered. The third instruction asked by the defendant was pi-operly refused, for reasons already stated in connection with the admissibility of the instrument of writing sued on. Judgment reversed and the cause remanded; Jxxdge Nap-ton concurring. Judge Scott absent.