Savage v. Fox , 60 N.H. 17 ( 1880 )

So far as Fairfield was concerned, there was a good consideration for the note of July 3, 1872. This being so, the surrender of that note was a good consideration for the note in suit. It discharged Fairfield from liability on the first note (Sanborn v. French, 22 N.H. 246), and there being a consideration between the plaintiff and Fairfield coincident with the defendant's promise as surety, she is liable in this suit. G.L., c. 183, s. 12; Leonard v. Vredenburgh, 8 Johns. 29, 39; Brandt Suretyship 8; Bay. Sureties 54. When the guaranty is contemporaneous with the principal contract, it is not necessary that there should be a separate and distinct consideration from that upon which the bill or note was executed. The credit given to the principal debtor is a sufficient consideration. Moies v. Bird, 11 Mass. 436; Bickford v. Gibbs, 8 Cush. 154; Hughes v. Littlefield, 18 Me. 400, Huntress v. Patten, 20 Me. 28; Gillighan v. Boardman, 29 Me. 79; Colburn v. Averill, 30 Me. 310); McNaught v. McClaughry, 42 N.Y. 22; Swift v. Tyson, 16 Pet. 1; 2 Dan. Neg. Ins. 682, s. 1,759; 2 Pars. Con. 6. It is said, in Bickford v. Gibbs, supra, that "there would be force in the objection that a distinct consideration for the undertaking of the guarantor or surety must be shown if the contract of guaranty had been made after the making and delivery of the note; but when the guaranty is made, before the delivery of the note by the maker to the promisee, it must be deemed to be done for the benefit of the maker, to add to the strength of the note and to induce the promisee to take it and advance his money on it, and no other consideration is necessary than the credit thus given to the maker." In 14 Ves., Jr., 190, Lord Eldon says, "the undertaking of one man for the debt of another does not require a consideration moving between them." There being, in this case, a sufficient consideration for the note in suit as between the payee and the principal, it is immaterial whether the defendant was liable on the first note or not.

The defence of usury cannot avail the defendant. The usury was paid by the principal, and he has a right of action therefor to recover three times the amount, as a penalty, or he may bring a suit and recover the amount actually paid. Fairfield not being a party to this suit would not be bound by the judgment, if the usury were allowed to the defendant in deduction of the damages; and such being the case, the plaintiff might be held to account for it twice, if held accountable in this suit. The privilege to recover back the money is personal, and only Fairfield can avail himself of it. Ward v. Whitney, 32 Vt. 89; G. L., c. 232, s. 3. The plaintiff is entitled to judgment for the full amount of the note.

FOSTER, J., did not sit: the others concurred.