Paul v. Stackhouse , 1861 Pa. LEXIS 116 ( 1861 )

The opinion of the court was delivered,

by Woodward, J.

— The contract of suretyship rests necessarily upon a consideration that is valuable. The consideration may be in the form of an inconvenience to the party promised, or of an advantage to be gained by either the principal debtor or the surety, and it may be ever so slight; but in the one form or the other, a consideration which the law denominates valuable, must be proved, or a surety cannot be made legally liable. What is called a moral obligation, is insufficient to support the promise of a surety. It is often said in the books, as was laid down by Gibbs, J., in Lee v. Muggeridge, 5 Taunton 36, that wherever there is a moral obligation to pay a debt, or perform a duty, a promise to perform that duty or pay that debt will be supported by the previous moral obligation, but it is believed that in all cases which may be cited in support of the rule, there was an original consideration beneficial to the party promising, and which might have been enforced on an implied promise, had it not been for some statute provision, or some positive rule of law, which, with a view to the general good, exempted the party from legal liability in the particular instance. See the cases cited in note to Edwards v. Davis, 16 Johns. 284. See also Mills v. Wyman, 3 Pickering 207; Smith v. Ware, 13 Johns. 257; and C. J. Gibson’s observations in Kennedy v. Ware, 1 Barr 445.

Many of these cases have reference to the action of assumpsit against the original or principal promissor; but they apply all the more forcibly to the action when brought against a surety, for his liabilities are measured by no equitable or moral standard, but only by rules of sheer law.

The plaintiff in error was not to be holden, therefore, on the ground of a prior moral obligation, and the judgment against him cannot be supported on that footing. Still, however, we think it sustainable. Taking the evidence contained in the first and second specifications of error, it may, without undue license, be treated as Paul’s request to Miss Stackhouse, to lend Sprogle the money in question. He promised Sprogle he would go his security, and this was an authority to the latter to say so to the creditor. Sprogle communicated it to Miss Stackhouse, and she let Sprogle have the money on the faith of Paul’s promise thus sent to her. What was this but saying, Let Sprogle have the money, and I will be his surety for the repayment ? The money was loaned, and a note taken at a year, signed only by Sprogle. Three days after the year was up, Paul signed it. There was his contract fully completed; but completed, it is said, on a consideration that was past and executed.

It is true, as a general rule, that the consideration which binds a surety must be executory; but where the thing was done at the instance or request of the surety, a past consideration binds him. Pitman, in his excellent little treatise on Principal and Surety, p. 57, Law Library, vol. 40, states the rule in regard to past considerations, by the instance of the old case of Hunt v. Bate, 3 Dyer 272, where A.’s servant was arrested in London for a trespass, and J. S., who was well acquainted with the master, bailed the servant, and afterwards A., for his friendship, promised to save him harmless, and J. S. was compelled to pay the condemnation money, it was held that an action did not lie upon A.’s promise, because the bailing, which was the consideration, was past, and executed before. A consideration, therefore, says this writer, which is executed, is not sufficient to support a subsequent promise, unless, indeed, the act was done at the request of the party promising, for then the promise is not a naked one, hut couples itself with the precedent request, and is therefore founded on a good consideration. Some of the cases he cites in support of the latter branch of the rule, do not sustain the proposition ; but others do. It was said by Mr. Justice Wilmot, in 1765, in Pillans & Rose v. Mierop & Hopkins, 3 Burrows 1671, that it was then settled that where the act is done at the request of the person promising, it will be a sufficient foundation to graft the promise upon. He pronounced many of the old cases, and some of the modern ones that were inconsistent herewith, to be “strange and absurd,” and declared that the rule as to past considerations “has been melting down into common sense of late times.”

It is necessary to lay a precedent request in cases where the consideration was executed and bygone at the time of the promise : 1 Saund. Rep. 264 a, and the cases in notes. Possibly the plaintiff’s narr. is defective in this respect, but as a copy of it has not been furnished us, we will not presume it defective after verdict and judgment.

On this ground, therefore, that the money was loaned to Sprogle at the instance and request of Paul, we hold him bound by his subsequent promise. The consideration for his promise, though past, was a continuing and valuable consideration, and his signature to the note was a completion and full execution of the promise upon that consideration. It is not essential that a consideration move to the surety — it is sufficient if the principal derive a benefit from the promise.

This is the ground upon which the judgment in Hemphill v. McClimans, 12 Harris 367, ought to have been placed. The son of a married woman contracted with builders for the stonework of a grist-mill. After part of the work had been done, they refused to proceed further without security for payment, and Mrs. Hemp-hill then promised to see them paid. They went on and finished the work; she became discovert, and after that renewed her promise to pay. Her first promise was void because of the disabilities of marriage, and her promise after discoverture was resisted for want of consideration. A majority of the court insisted on resting her legal liability on her moral obligation, and that has made the case a mischievous precedent. A moral obligation no doubt there was to pay for labour which she had induced others to expend for the benefit of her son, but like most moral obligations it was enforceable in foro oonsoientice, rather than in a court of law. The law compels nobody to become surety for another. The relation of principal and surety rests wholly in contract, and the law enforces contracts only that are founded in some consideration. But the work having been finished at Mrs. Hemphill’s instance, her subsequent promise, when she became able to contract, should have been coupled with the precedent request, and thus a valid consideration, though past and bygone, would have been found.

There is only one other point in the case in hand. It is said the promise of Paul, being for the debt of another, is within our Statute of Frauds of 1855. The court answered that his signature to the note was a sufficient note in writing to take it out of the statute. Counsel argue that this is assuming the whole matter in dispute, because the only promise that they see any consideration for was the parol promise, and that would be clearly within the statute.

But the mistake of counsel consists in not connecting the signature of the note with the original transaction a year previously. Regarding the parts of the transaction as constituting one whole contract, and referring the signature of the note to the original consideration, the court’s answer to the point was complete. There was a note in writing to evidence the contract, and the consideration was acknowledged on the face of the writing. It was not,1 therefore, within the statute, and being in point of fact founded on a sufficient consideration, was properly enforced.

The judgment is affirmed.