True v. Harding , 12 Me. 193 ( 1835 )

Weston C. J.

The consideration for the promise declared on, was the loan of the money to Ebenezcr H. Barrett. The note itself shows that it was given, upon value received. As the promise of the intestate was made at the same time with the promise to the principal, it was supported and sustained by the same consideration. Leonard v. Vanderburg, 8 Johns. 38; Dearborn v. Parks, 5 Greenl. 81. The intestate promised to secure the note, which was given for money loaned at his request, and appropriated towards the erection of a building, the legal title of which was in him. To secure, is a term equally as strong, as if he had engaged to guaranty, and must be understood to have the same meaning. A promise to secure the note is a stipulation., that it should be paid, according to its tenor and effect. The guarantor knew the amount of the note, and when it was payable. He had undertaken to secure it, and had thereby engaged, that the principal should pay it, or that lie would pay it himself. No notice from the plaintiff was necessary. Norton v. Eastman, 4 Greenl. 521 ; Allen v. Brightman, 20 Johns. 365; Boyd v. Cleaveland, 4 Pick. 525 ; Read v. Cutts, 7 Greenl. 186.

The intestate promised to secure the note, by and with certain real estate, of which ho was the legal owner. This he was bound to fulfil; or failing to do so, an obligation would rest upon him to pay the stipulated amount in money. If a party contract to pay a certain sum, at a time limited, in property specified, either real or personal, if he would avail himself of the privilege of so paying, he must take care to do it, or tender performance at the time. It is true, the intestate deceased, before the maturity of the note; but that did not discharge his estate, or his representative, from the obligation he had assumed to the plaintiff. And as payment has not been made, an action may be maintained against the defendant for the amount of the note.

The written evidence introduced by the defendant, showing that there had been a division of the real estate of the intestate among his heirs, of whom the wife of the plaintiff was one, did not prove that the plaintiff had been paid. It appeared thereby, that a part of the estate, referred to in the guaranty, was left undivided, and reserved for this purpose; but it has not been so applied, and still remains the property of the heirs.

Judgment for the plaintiff.