Ohleyer v. Bernheim Bros. & Uri , 67 Miss. 75 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

The demurrer to the second (amended) plea should have been overruled.

This plea is unusually full and explicit in that it not only states upon what consideration the acceptance was made, the past-due debt of another, but negatives specifically the existence of any agreement on the part of the plaintiffs to discharge their debtor from his obligation, to forbear the collection of the debt, or surrender any security held by them. It then negatives the fact that the defendant was originally bound, by averring that the defendant did not promise to pay the debt when it was made, or request the plaintiffs to extend the credit. Nothing now occurs to us, and nothing has been suggested by appellees’ counsel not covered by the specific denials of the plea, which would be a sufficient consideration to uphold the defendant’s promise to pay the debt. The plea is very much fuller than the one in Nelson v. Serle, 4 M. & W. 795, which was sustained by the court of exchequer chamber.

The objection which is taken, that to permit the defendant to plead a want of consideration would be to contradict the terms of the written instrument, is wholly untenable. It is not proposed to add to or detract from the terms of the promise, but to show that according to its terms as written it cannot be the foundation of an action, because it is not supported by any valuable consideration. Cocke v. Blackbourn, 57 Miss. 689.

The judgment is reversed, the demurrer overruled, and cause remanded.

A. J. McLaurin and P. Henry, for appellees, filed a suggestion of error, protesting that it had not been urged on behalf of appellees that a want of consideration could not be shown by parol or otherwise. Counsel reviewed the authorities before cited and discussed at length the question involved in the decision of the court.

Suggestion of error overruled.