Dunbar v. Smith , 66 Ala. 490 ( 1880 )

STONE, J.

There is nothing in this record to show that, by the negotiation which ended in the acceptance by Dunbar of McKenzie’s draft, the debt of the latter to Cooper, in a larger sum, was either cancelled or postponed. If this case stood on this naked fact, and if the promise of Dunbar was a simple promise by him to pay thirty dollars of McKenzie’s debt, then such promise would not be binding without written promise, based on a consideration expressed in the writing.—King v. Wilson, 2 Str. 873; Caston v. Moss, 1 Bailey, 14; Musick v. Musick, 7 Mo. 495; Furbish v. Goodnow 98 Mass. 296; Thomas v. Delphy, 33 Md. 373; Lang v. Henry, 54 N. H. 57; Harrington v. Rich, 6 Verm. 666.

But we do not understand this case to be the one supposed. Cooper held possession of baggage, the property of McKenzie, on which he claimed a lien for an unpaid board bill. McKenzie desired to obtain possession of the baggage. It was finally agreed that, if McKenzie would obtain the acceptance of Dunbar, or another named person, for thirty dollars, payable to Cooper, then the latter would release the baggage, and surrender it to McKenzie. The acceptance was procured, the baggage released, and that acceptance is the 'foundation of the present suit. This is not the naked case of a promise by Dunbar to pay the debt of McKenzie. It yas a new, independent, substantive contract, based on a new, present, valuable consideration — both benefit to McKenzie, and detriment to Cooper. It was a valuable consideration, because Cooper had the rightful possession of the goods, and surrendered that possession as the consideration of the promise. The contract became a binding one, without any reference to the nature of Cooper’s claim on the goods, if rightful, and without any reference to the antecedent debt of McKenzie to Cooper, save as that debt and the nature of it tended to show the bonafides of Cooper’s asserted right to hold the property. The acceptor of a draft or order, if there be no explanation of the transaction, is the principal debtor, bound in the first instance to pay, and to hold harmless the drawer and indorser. This, however, is but a prima fade intendment, and will yield to proof, showing the transaction is otherwise. Acceptances are frequently given for the •accommodation of the drawer, and when such is the case, the •drawer, as between themselves, becomes the principal debtor, •and the acceptor fills the relation of surety. A consideration is necessary to uphold any contract. It may be of benefit to the promisor, or of detriment to the promisee. But, if the promise rest on a contemporaneous consideration, it is not necessary that each promisor shall share in the benefits of the consideration. A consideration moving to the principal debtor, binds the surety, or accommodation party to the paper, to the same extent as it binds the principal. This, for the reason that the law presumes the credit would not have been granted, without tbe security the name of the 'surety furnishes. It Is on this principle that sureties and accommodation parties are held bound in law, by force of tbe consideration which moves alone to their principal. These principles are fully settled in the case of Rutledge v. Townsend, 38 Ala. 706. See, also, Martin v. Black, 21 Ala. 721; Graves v. Shulman, 59 Ala. 406; 2 Amer. L. Cases, 5th ed. 163 et seq., notes to Vadakin v. Soper; Browne Stat. Frauds, 4th ed. § 212.

Applying these principles to the case in hand, McKenzie and Cooper made a new contract. In consideration the latter would surrender certain goods of which he had the lawful possession, the former promised and gave Dunbar’s acceptance of his (McKenzie’s) order. This rested, not on the original debt McKenzie owed Cooper, but on the new promise, based on the new consideration. Such new promise had all the elements of a contract, namely, the mutual, concurring assent of their two minds, based on a valuable, present consideration of benefit to McKenzie and detriment to Cooper. It was not important that Dunbar should know wbat tbe consideration was. He trusted McKenzie, and accepted the paper for bis accommodation. On the faith of it Cooper surrendered the goods, and Dunbar is as much bound to pay tbe debt, both in law and morals, as if the consideration had moved to him.

Affirmed.