
    Gilman vs. Kibler.
    1. Where authority is given to the payees of a bill single to affix the name of an individual to such instrument as a surety, if such payees desired a surety, the payees could signify their acceptance of him as a surety in no way than by the execution of the power, which must be done in a reasonable time.
    2. Where authority is given to the joint payees of a bill single, who are not partners, it seems, in the event of the death of one of the joint payees, it cannot be executed by the survivor.
    3. By the act of 1801, ch. 25, sec. 1, a promise to be bound for the debt, default or miscarriage o'f another, must be in writing: the consideratidn of such promise need not be in writing to make it a valid agreement. Taylor vs. Ross, 3 Yerg. 333.
    4. To render one responsible for the debt of another, the consideration passing between the original parties to a previous agreement, is not sufficient. There must be a new consideration passing between the new parties.
    5. An agreement to forbear suit is a good consideration ,* but where the party sought to be charged, merely wrote a letter to the creditor, stating that if he required a surety he was willing to be bound, but no acceptance of him as such took place: It is held, there was no agreement to forbear and no consideration passing between the parties.
    Samuel Kibler, as surviving partner of Samuel and Joseph Kibler, sued Gilman in assumpsit in the Circuit Court of Washington county. The defendant pleaded ?ion assumpsit and non est factum, and issues were formed on these pleas.
    The case was tried at the October term, 1843, by Judge R. M. Anderson and a jury. A verdict and judgment were rendered in favor of the plaintiff, from which the defendant appealed.
    All the facts of this case, so far as they bear on the questions determined, are explicitly stated by the court.
    
      Nelson, for the plaintiff in error.
    1. The plaintiff in this case below signed the name of defendant, Gilman, to the bill single as a surety, under and by virtue of a letter addressed to Samuel and Joseph Kibler, after the death of Joseph, and after suit was commenced on the bill single. This he had no power to do. A surviving obligee cannot execute a power conferred on both obligees. Theobald, 242: Story on Agency, 44: Pitman, 48: 13 Petersdorff, 509. 5 Yerg. 71, was a case of partnership. See 4 Kent, 326.
    2. The instrument signed was not the instrument authorized tobe signed. See 5 Yerg.-193: 13 Petersdorff, 543, 544: Comyn on Contracts, 213. The term note does not mean a sealed instrument. Meigs, 99: 10 Yerg. 228, 247.
    3. The payees could not be the agent of Gilman, to make a note payable to themselves. See Pitman, 68: Story orí Agency, 11, sec. 9.
    4. There should have been an acceptance of the proposed guaranty, and notification to the guarantors. There was none. Pitmam, 39, 40: Comyn on Con. 197. Gilman’s letter was dated 26th July, 1838; suit was brought 12th July, 1839.
    5. There was no consideration- proved passing between the plaintiff and defendant. The consideration passing between the Kiblers and Creasay, was not sufficient. There should have been a consideration passing between the Kiblers and Gilman. 3 Kent. 122: 38 Law Lib. 54, 55.
    6. The Judge charged the jury, that “a benefit resulting to Gilman or Creasay from the guaranty, or a detriment injury, delay or loss to the Kiblers, would be a sufficient consideration to bind Gilman, the guarantor; such as extending the credit, or a promise or contract of longer definite time to Crea-say for payment, or any other detriment or loss to the Kiblers in consequence of the guaranty, would be a sufficient consideration to support the guaranty or make it binding. If no advantage resulted either to Creasay or Gilman, or disadvantage, loss or delay to the Kiblers, in consequence of the guaranty, at the date thereof or subsequently, then it would want a consideration and be void in law.”
    The court clearly erred in placing the consideration on the naked ground, without any qualification, of “any other detriment, loss, delay or disadvantage to the Kiblers.” To constitute a consideration on the ground of detriment, loss, delay or disadvantage to the Kiblers, the Kiblers on their part, should have been bound by some contract, either parol or written, with Creasay or Gilman, by which they were to forbear to sue, or bound to do some other act creating the detriment, loss, disadvantage or delay. The mere fact of delay on their part, without any contract binding them to it, would not be sufficient. “Definiteness and certainty,” says Theobald, p. 4, No. 8, “as opposed to the vague and general, are necessary in the terms of every consideration. Thus the stipulations of forbearance to sue for a time, or some time, or a little time have been adjudged insufficient considerations.” The same doctrine is contained in Pitman’s Treatise: 88 Law Lib. 55. Mutuality in the consideration — something to be done on the one side and forbearance on the other — is here evidently contemplated. Comyn, in defining a guarantee, says, in his work on Contracts, 182 top, 191 foot, that “to make such an obligation binding, there must be some good consideration moving from the party with whom it is made, as, for instance, the sale and delivery of goods to, or work to be clone on credit for the person on whose behalf the guarantee is given, or in consideration of a creditor giving time, or forbearing to sue his debtor for a precedent debt, and the like.’’ There must be a contract, understanding or agreement between the parties at the time the guaranty is given and not subsequently. All the cases concur in this, that the consideration for the original debt will not attach to the subsequent promise, and that the promise to pay must arise out of some new and original consideration of benefit or harm, moving between the newly contracting parties. 3 Kent, 128: 6 Yerg. 418.
    The charge of the Circuit Judge was not in conformity with these principles, was erroneous, and the judgment should therefore be reversed.
    
      Arnold, for the plaintiff in error.
    
      John A.' 8f R. J. McKinney, for the defendant in error.
   Reese, J.

delivered the opinion of the court.

It appears.from the record' in this cause, that one Pleasant Creasay purchased a quantity of flour from Jacob Kibler and Samuel Kibler. It does not appear whether the Messrs. Kib-ler constituted a co-partnership firm, either general or limited.

To secure to them the payment of the price of the flour so purchased, Creasay on the 27th day of January, 1838, executed his bill single, or covenant of the following tenor:

“On or before the first day of May next, I promise to pay Jacob and Samuel Kibler, three hundred and fifteen dollars in good sound State Bank Notes, State of Georgia, Tennessee and Alabama, all of either or part as may suit said Creasay, the same for value received, this 27th January, 1838.
PLEASANT CREASAY, [Seal.]”
On the 27th day of July, 1838, Joseph B. Gilman, the defendant in this case, transmitted to the Messrs. Kibler the following letter:
“Mr. Jacob Kibler and Samuel — Gentlemen—You hold a note of hand on Pleasant Creasay for $315, which I am a witness to, and should you require security, I request you to place my name to the note, and this order shall be your voucher for the same. With much respect, I am your friend,
Jos. B. Gilman.
Fall Branch, July 27th, 1838.”

The Messrs. Kibler received the above letter on the day of its date, but did not then place the name of the writer to the bill single or covenant of the said Creasay above set forth. Whether they did not require security to the same, or did not think it well described and identified by the terms of the letter, being a sealed covenant and not witnessed by Gilman, or whether being payees thereof, they questioned either the legality or the propriety and prudence of their affixing the name of another, does not satisfactorily appear. -But so it is, they did not affix the name of Gilman to the instrument. Several months after-wards Jacob Kibler died, the name of Gilman not then being affixed to the instrument. On the 12th of August, 1839, this suit was brought, and the name of Gilman was not then affixed to the instrument. After the suit was in court, the signature “Joseph B. Gilman by Samuel Kibler” was placed upon a blank paper, which was appended to the instrument below the signature and seal of said Pleasant Creasay, and thereon a declaration was filed.

The first count is the ordinary count in assumpsit against Gilman as the maker of a promissory note. The second count is indebitatus assumpsit for flour sold to Gilman and Creasay. And the third alleges, that flour was sold to Creasay, and that Gilman became bound and liable-to pay, and promised to pay therefor. As to the first count, the defendant pleads on oath, under the statute, that he did not sign the instrument or authorize its signature, upon which there was issue. Non-assumpsit was pleaded to the other two counts and issue taken thereon.

Verdict and judgment were rendered in favor of the plaintiff below. A motion for a new trial was made by the defendant, which was overruled by the court, and the defendant has prosecuted his appeal to this court. And here it is correctly admitted by the counsel for the plaintiff below, that no recovery could be had upon the second and third counts of the declaration. The action can be maintained upon the' first count, if the signature of Gilman’s name to the instrument, under the circumstances of time, manner, &c. were valid, and founded upon an adequate consideration. The first will depend upon a construction of the letter or written authority; the latter upon the proof. “If you should wish security, you are requested to place my name on the note.” The construction of this clause, which indeed is the whole of the matter, can present no difficulty. It is not the creation of an absolute or independent obligation; it is merely the authority to create one, if the agent should think it for his interest to do so. “If you should wish security, you are requested to place my name to the note.” Can the Messrs. Kibler upon this say, we do wish security, but we will not place your name upon the note. Nevertheless, we hold 3rou bound upon the letter? Certainly not. The only mode in which they could signify and assert that they wished and required security, was by placing the name of Gilman upon the note. If they did not do so, they thereby furnished evidence that they did not require his security. The covenant had been in existence six months; it had been due nearly three months. Under these circumstances did the letter mean, “if you should not require security now, because you may believe Creasay to be good, or for any other reason, still, if twelve months hereafter, from a change in his circumstances, you should require security, then place my name to the note?” It can be held to mean no such thing; and, therefore, if Jacob Kibler had continued to live, and had joined in the act of affixing the signature at the time it was done, the act could not have been sustained, we think, by a correct construction of the power. The acceptance of Gilman as surety, could be manifested, as we have said, in no other way than by the execution of the power; and such acceptance and execution could not be left an open question indefinitely, and at some future time, or under other circumstances, be given and performed at the election of the Kiblers. It is, therefore, not necessary to enquire into the difference of the execution of the power as it was attempted by the surviving Kibler, and its execution by both. We will state, however, that in a case like this, where neither the writing nor proof, aliunde, show a partnership, it would be difficult to maintain, other objections aside, the execution of the power by the survivor. The view which we have taken of the construction of the instrument removes or diminishes the necessity of much or any discussion on the other branch of the question, namely, the considération required to render the defendant liable upon his signature to an instrument already in existence and founded upon a past consideration between others. The letter or agreement upon its face shows no consideration whatever. Under our statute of frauds it has been settled, that it need not do so. It is sufficient that a valid consideration exists. It may be proved aliunde. The past consideration will not maintain the promise; it is necessary that there should be a new consideration between the new parties. This maybe either some benefit or advantage to the promisor, or some detriment or loss connected with or arising out of the agreement itself to the promissee. The consideration here insisted on, is an agreement to forbear suit against Creasay-. There is no satisfactory proof of the existence of such an agreement. If in consequence of the reception of the letter from Gilman by the Kiblers, any loss or detriment in fact followed to the latter, without their having made- any agreement'to forbear, this would not be such a loss or detriment as would amount to a consideration maintaining the promise of Gilman; and yet such seems to be the meaning of the charge of the Circuit Court upon this point of the case. And so far we think the charge was erroneous.

Many other questions were discussed in the Circuit Court and have been again' discussed here,' into which we do not deem it necessary to enter. And many facts, very discreditable to the plaintiff in error, have been voluminously accumulated upon the records, because he, not placing himself upon the just and legal grounds of defence which we have in this opinion set forth, chose, by the most questionable means, to represent a state of the facts contrary to the truth, by the introduction of spurious or suppositious papers for the covenant and power of attorney or letter produced and relied on by the. plaintiff below.

But to whatever just indignation the plaintiff in error may, on this ground, have subjected himself, it cannot of course deprive him of the benefit of that available defence to which, in the former part of this opinion, we have shown that he is entitled.

Let the judgment be reversed, and a new trial of the case be had in the Circuit Court.  