Sawyer v. Fernald , 59 Me. 500 ( 1871 )

Appleton, C. J.

On the 3d September, 1867, the husband of the defendant borrowed of the plaintiff fourteen hundred dollars, for which he then gave his promissory note. The note and the money were delivered on that day. The maker of the note at the same time agreed to procure an additional signer the next day.

On 23d March, 1869, four days prior to the death of her husband, the defendant, at his request and in the absence of the plaintiff and without receiving any consideration therefor from any one, and in ignorance of her husband’s agreement, placed her name upon the back of the note.

The defendant was no party to the note in its inception. She has received no consideration whatever for her signature. Where one indorses his name in blank on a promissory note several weeks after it is given, he is not liable as an original promisor. Mecorney v. Stanley, 8 Cush. 85. One who signs as original promisor, a note which has already been delivered and accepted, is not liable thereon without independent proof of a-new consideration. Green v. Shepherd, 5 Allen, 588. A guaranty of the payment of a preexisting note, when the only consideration is a past benefit or favor conferred, and withoutanyd esign or expectation of remuneration, is without valuable consideration, and cannot be enforced. Ware v. Adams, 24 Maine, 177. A guaranty of a note made more than a year after its date, and without consideration was held void in White v. Field, 30 Vt. 338.

A person not a party to a promissory note is liable, who after its delivery to the payee places his name upon it in pursuance of an agreement made by him with such payee before the making of the note. Leonard v. Wilkes, 36 Maine, 265; Klein v. Currier, 14 Ill. 237. But in such case he is held, because his signature is only in fulfillment of his previous agreement, upon the faith of which the loan was made for which the note was given. But in the present case, the defendant had made no previous promise.

Nor does the alleged agreement on the part of the maker, if binding, to procure an additional signer the next day, alter the legal rights of the defendant. She was ignorant of the existence of such agreement. It was already broken. The plaintiff was not present and did not discharge the husband from his liability for a breach of this agreement, nor could it be known that he would. The agreement being broken, and the liability of the husband for its breach remaining undischarged when her signature was affixed to his note, the plaintiff parting with nothing and the defendant receiving nothing, it requires keen vision to see in what the consideration was in the way of loss to the plaintiff or gain to the defendant, for her placing her name on the back of the note. If there was no consideration whatever, she must be discharged.

The judge finds, as matter of fact, that the note was delivered, and the money paid at its date. His intimation that it was immaterial -whether the plaintiff had accepted the note or not, was upon a state of facts found by him not to exist, and is of no importance. The delivery of the note, and the payment of it, was not, upon any condition, to be void, if such condition was not performed.

^Exceptions overruled.

Kent, DicKERSON, and Tapeey, JJ., concurred. CuttiNG, J., concurred solely on the ground that the wife could not be surety for her husband.