Bunker v. Ireland , 81 Me. 519 ( 1889 )

Ltbbey, J.

This is assumpsit on an instrument of the following tenor:

April 18, 1877.

For a valuable consideration to me paid by S. Bunker and for value received 1 promise to pay S. Bunker the within note, it being for goods furnished my family.

His

Fieield X Ireland.

Mark.

Witness, J. P. Spooner.

This instrument is written on the back of the following promissory note.

$105. December 26, 1874.

After date I promise to pay to the order of S. Bunker one hundred and five dollars and interest in ten equal monthly payments from date; value received.

Ardele M. Ireland.

The defendant relies on the statute of limitations, and the only question in contention is, whether the instrument declared on is a promissory note, signed in the presence of an attesting witness, or a guaranty, — a collateral undertaking to pay the debt of another.

We think it cannot be held to be a promissory note but must be held to be a guaranty. It is agreed, that the only consideration for it, was temporary forbearance on the part of the plaintiff to enforce payment of the note on which it is written. It goes with that note and has no validity independent of it. It is a “promise to pay S. Bunker, (the payee) the within note.” If the note had ceased to have legal, validity by payment or any other means, it would be a good defense to the defendant. If Ardell M. Ireland had paid the note after the defendant’s promise was written upon it, it would be a good defense to the defendant. Comm. Ins. Co. v. Whitney, 1 Met. 21.

It is an agreement to pay the debt of another and must be in writing and for a good consideration, to be binding. Comm. Ins. Co. v. Whitney, supra, is relied on by the plaintiff as decisive of this ease. But in that case, the defendant, by his promise in the presence of an attesting witness, admitted the validity of liis own promissory note, and agreed to pay it on demand. The promise was an original one, and not a guaranty. The maker of a note can not be a guarantor of it. But that case is in conflict with Young v. Weston, 39 Maine, 492, decided fifteen years later by our own court; and if we were required to follow either we should follow our own decision. But the facts of this case do not bring it within the authority of either of those cases. In both, the new agreement was by the promisors of the notes. The contract declared on here comes within the definition of guaranty. 1 Bouv. Law Diet. 570, “Guaranty.” Oxford Bank v. Haynes, 8 Pick. 423; True v. Harding, 12 Maine, 193.

Exceptions sustained.

Peters, C. J., Walton, Danforth, Virgin, Foster and Haskell, JJ., concurred.