
    James A. Jaycox, Respondent, v. Leroy Trembly, Defendant, Impleaded with Lucy Trembly, Appellant.
    
      Note —made by a husband and his wife in consideration of the surrender of two other notes held by the payee — a mistakeiof the wife in signing the note is not a defense thereto.
    
    A note made by a husband and his wife, ‘representing the amount due upon two past due notes held by the payee, one made by the wife and the other by the husband and wife, which were surrendered at the.time it was delivered, is founded upon a sufficient consideration both as to the husband and the wife.
    Testimony given in an action upon the note to the effect- that the wife, who signed the note, in the absence of the payee, at the request of her husband, to whom the payee had suggested that an indorSer be obtained, did so without reading it or knowing its terms, and under the mistaken- impression that she was signing a renewal of the note made by her and her husband, is not sufficient to limit her liability upqh the new note tq the amount of the,former note made by her and her husband, in the absence of! any claim that she was" unable to read, •or that the payee shared the mistake, or was guilty of fraud or misrepresentation.
    Ap-peal by the defendant, Lucy Trembly, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Tompkins on. the 20th day of January, 1898, upon the report of a referee. i
    
      John A. Milne, for the appellant.
    
      Randolph Horton, for the respondent.
   Putnam, J.:

On the 23d day of August, 1889, the defendant Leroy Trembly, being indebted to the plaintiff in tike sum of $310.83 for goods sold, made and delivered to the plaintiff Iris promissory note for that sum, payable one year .after date, with ; interest. Thereafter, on the 8th day of January, 1890, in consideration of a loan to the said Leroy Trembly, a note for-$300, signed by the defendants Leroy Trembly and his wife, Lucy Trembly, as makers, payable nine months after date, with interest, was also made and delivered to the plaintiff.

In the month of Juné, 1892, a new note, dated April 1, 1892 payable twelve months after its date, for $699.66, which sum represented the amount due on the two notes before mentioned, including interest to the date of. the new note, was made by the defendant Leroy Trembly and his wife, and, delivered to the plaintiff herein, upon the surrender of the two notes first above mentioned.

The signature of Lucy Trembly to the last-named note was procured by her husband at the suggestion of the plaintiff that he wished an indorser, the suggestion being made in an interview at which the defendant Lucy Trembly was not present, and her signature being affixed to the instrument in the absence of the plaintiff.

The note for $699.66 remaining unpaid after its maturity, the plaintiff brought this action to recover the amount due thereon, and from the judgment rendered by the court below in favor of the plaintiff the defendant Lucy Trembly alone appeals to this court.

The appellant, although admitting the genuineness of her signature to the note in suit, urges On this appeal a partial failure of consideration (she having offered to allow judgment to be taken against her for the amount due upon the $300 note), and that she signed the said note without reading it, under, a misapprehension, believing it to be merely a renewal of the $300 note, and not knowing that it also included the note for $310.83 on which her husband alone was liable, and that in consequence of her mistake she was only liable for the sum for which she offered judgment. .

. There was a sufficient consideration for the note in suit. The plaintiff surrendered the two notes then past due, one made by both of the defendants and the other made by Leroy Trembly alone, and received in place of the surrendered securities a new note, payable twelve months from its date.

The surrender by the plaintiff of the notes in question, and the extension by the substituted security of the time of payment of the debt secured thereby, constituted a valuable consideration. (Pratt v. Coman, 37 N. Y. 440 Cary v. White, 52 id. 138, 143; Meltzer v. Doll, 91 id. 365, 368.) Such surrender and extension of the time -of payment was a valuable consideration, not only as to the principal debtor, Leroy Trembly, but also as to the appellant, Lucy Trembly. While the contract Of a surety requires a consideration to sustain it, such consideration meed not be something passing from the creditor to the surety. “Benefit to the principal debtor, or harm or inconvenience to the creditor, is enough to form a con, sideration for the guaranty; and the consideration in that shape may be executory as well as executed at the time.” (Pennsylvania Coal Co. v. Blake, 85 N. Y. 226, 232.)

But the appellant, by becoming a party to the new note, obtained for her own ¡personal benefit a year’s forbearance on the part of the creditor, in the enforcement of the note for $300, upon which she was concededly individually liable and which was then overdue.

As there was a valuable consideration for the note in suit when it was executed, as between the plaintiff and the appellant,, it is evident that there has not been a partial failure of consideration thereof. The.note was given in place "of the two surrendered notes and.of the extension of the time of payment of the debt secured thereby. This surrender and extension Was then and now "remains a "valid consideration as to the principal debtor, the defendant Leroy Trenn bly, and, therefore, also as to the appellant, his surety: (Pennsylvania Coal Company v. Blake, p. 232.)

The appellant urges that, although she signed the instrument in suit, she did so without reading it or knowing its terms, believing it to be a renewal of the $300 notei, and, therefore, seeks to be relieved from her liability thereon. No claim is made that she could not read the instrument, but simply that, she did not. It will, be observed that in her answer she: does not allege any fraud or mistake on the part of the plaintiffj nor does she set. out any fraud of the defendant Leroy Trembly in procuring - her signature to the noté. She simply avers her own mistake in signing the note without reading it. Nor did the evidence on the trial- show any fraud or mistake on the part of the plaintiff. lie held the two notes, one signed by the defendant Leroy-alone for $310.83, and the other for $300, executed by both the defendants. These notes were past due and he was urging payment thereof. He was willing to take a new note, payable one year from date, executed by both defendants. He obtained what he demanded. There was not the slightest evidence of any fraud on his part in procuring the signature of the appellant to the note, or showing any connection on his part with her mistake.

" It is a well-settled doctrine that in equitable actions, when a party seeks relief on the ground of a mistake, the. court will refuse to interfere unless there has been either a mutual mistake of the parties or a mistake upon one side and fraud upon the other. (Moran v. McLarty, 75 N. Y. 25; Smith v. Smith, 134 id. 62; Albany City Savings Institution v. Burdick, 87 id. 40; Kirchner v. N. H. S. M. Co., 135 id. 182, 189.)

The principle thus established in equitable actions applies to such a case as this, where, in an action at law, brought to recover on a written instrument, the mistake of the party executing it, as to its contents, is set up as a defense, without any allegation of a mutual mistake, or of fraud on the part of the plaintiff. (See Kirchner v. N. H. S. M. Co., supra) We think no well-considered authority can be found sustaining the proposition of the learned counsel for the defendants, that the mistake of the ajipellant caused by her own negligence in omitting to read the note which the plaintiff had demanded, and which she must have known was to be delivered to him, not procured by any fraud or misrepresentation on his part, relieved her from liability — the plaintiff on the faith of the note having surrendered the securities he previously possessed, and extended the timejof the payment of the debt secured thereby.

We think the testimony sought to be elicited by the appellant as to conversations - had with her husband in the absence óf the plaintiff, at the time the note in suit was signed, was properly excluded by the referee.

If such evidence had been received, under the defendant’s answer, it could only have had the effect to establish the fact therein set up, of her mistake in signing without reading the instrument in question, believing it to be a mere renewal of the $300 note. Her misapprehension in that regard, as we have endeavored to show, was not a defense to the action, and hence the evidence excluded was not material.

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  