Laingor v. Lowenthal ( 1909 )

Mr. Justice Baker

delivered the opinion of the court.

The contention of plaintiff in error, Leo B. Lowenthal, is that evidence that he did not sign the guaranty until two weeks after the extension agreement had been signed by Sophie Lowenthal and the guaranty by Sidney Lowenthal, and both instruments delivered to and accepted by the attorney of the plaintiff, tended to prove that as to said Leo B. Lowenthal the guaranty was without consideration, and that therefore the court erred in excluding such evidence. The extension contract signed by Sophie Lowenthal is referred to in the guaranty thereof executed by plaintiffs in error, and the two instruments are therefore to be read together. The extension agreement recites that, “Leo B. Lowenthal and Sidney Lowenthal also desire that the said extension be granted as stated in the preceding paragraph hereof, and, in consideration of the said extension, propose and agree with the said Sophie Lowenthal and with the legal owner and holder of the said note that they will be" bound for the payment of the said sum of eight hundred dollars ($800) portion of the said indebtedness so extended, and interest thereon as evidenced by their guaranty as to the payment of the said sum of $800 and interest thereon, and covering this extension agreement.” The consent of plaintiff to said extension agreement is shown by the following provision thereof: ‘ ‘ The consent of the legal holder of the said notes and indebtedness to this agreement is evidenced by the acceptance of the said interest coupons and the said guaranty of the said Leo. B. Lowenthal and Sidney Lowenthal.”

It is true as a general rule that the consideration which binds a guarantor or other surety must be ex-ecutory; but where the thing was done at the instance or request of the surety or guarantor, a past consideration binds him. Paul v. Stackhouse, 38 Pa. S. 302; Smith v. Molleson, 148 N. Y. 241; Brandt on Surety-ship and Guaranty, 3rd ed., sec. 23; Pitman on Principal and Surety, 40 Law Library, 57.

In Paul v. Stackhouse, supra, one loaned money to another on the promised security of a third person, taking a note from the borrower payable in one year, which, three days after the year had expired, was signed by the one who had promised to become surety on the note, and it was held that the money having been loaned at the request of the surety, the consideration for his promise, although past, was continuing and valuable, and that his signature to the note was a completion and full execution of the promise on that consideration.

A consideration which is executed, says Pitman in his treatise on Principal and Surety, 40 Law Library, 57, “is not sufficient to support a subsequent promise, unless indeed the act was done at the request of the party promising, for then the promise is not a naked one, but couples itself with the preceding request, and is therefore founded on a good consideration.”

The plaintiff agreed to extend the time of payment of the money mentioned in the extension agreement and guaranty at the request of plaintiffs in error, on the agreement of the debtor that plaintiffs in error would guarantee the payment thereof, and they executed the guaranty sued on, and we hold them both bound by their guaranty, although it may have been signed by Leo B. Lowenthal subsequent to its delivery to plaintiffs ’ attorney. The subsequent promise of Leo B. Lowenthal is to lie coupled with his preceding request, and is therefore founded on a good consideration.

We think the court did not err either in excluding the evidence offered by the defendants or in instructing the jury to find a verdict for the plaintiff, and the judgment of the Municipal Court will be affirmed.

Affirmed.