Forster v. Fuller , 6 Mass. 58 ( 1809 )

Parsons, C. J.

The plaintiff’s right to recover upon the facts agreed is the point submitted to the Court in this action. Two objections are made by the defendant ;•— that the note is without a sufficient consideration; —and that, by force of it, Scott or his estate are only chargeable.

As to the first objection, it is true that the defendant has received no consideration for signing the note; but it is equally true that the plaintiff, by discharging Scott from prison, has no remedy on his judgment; which is a sufficient consideration for the defendant’s promise ; for a damage to the promisee, as well as benefit to the promisor, is a sufficient consideration to support a promise.

The other objection is, that the defendant is not personally bound, as he contracted only as guardian of Scott. — As an administrator cannot by his promise bind the estate of the intestate, so neither can the guardian by his contract bind the person or estate of his ward. Unless, therefore, the defendant is liable to pay this note, the plaintiff has'no remedy. But we are satisfied that the defendant is liable. It is his promise, made on a sufficient consideration; and although in the note he states that he promises as guardian, yet he is personally bound ; his trust being inserted only to entitle himself to indemnity from his ward, with which the plaintiff has no concern. According to the agreement of the parties, the defendant must be called. ⁽¹⁾, ⁽²⁾

(1) Thatcher & Al. vs. Dinsmore, ante, vol v. p. 299.

(2) [The promise was made as guardian, and, therefore, would seem to stand on the same footing as a promise made by a defendant as executor, after the death of the testator, which, it has been held, does not render him liable de horns propriis. — Powell vs. Graham, 1 B. Moore, 316, 317. — 7 Taunt. 580. — Ellis vs. Bowen, For. 98. — Segar vs. Atkinson, 1 H. Bl. 103. — 2 Chitty's Pl. 6th Lond. edit. 70. — Partridge vs. Court, 5 Price, 412.— 7 Price, 591. — King vs. Thorn, 1 D. & E. 407. — Cowell vs. Watts, 6 East, 405. — Powley vs. Newton, 6 Taunt. 459. — Roan vs. Hughes, 7 Brown, P. C. 550. —Ed.]