
    LITTLE & NOECKER vs. NABB.
    A guaranty of the payment of a note, need not shew upon its face, the consideration for which it was given. »
    APPEAL from St. Louis Court of Common Pleas.
    Primm & Taylor, for Appellants.
    
    POINTS AND AUTHORITIES:
    1. The instruction of the Court taires the whole case from the jury and leaves them nothing to do, but sign the same for their verdict, which they in fact did. 6 Mo. Rep. 64.
    2. The instruction of the Court was erroneous, because the guarantee need not express the consideration, but the same may be shown by parol, which was done in this case. 2 Mo. Rep. 103; 8 Mo. Rep. 303.
    3. The plaintiffs were entitled to a verdict, for they shewed more than the strict letter of the law required, as the makers of the note were proven to have been insolvent, not only at the time same was made, but so at the time the guarantee was executed, as well as the time this suit was brought.
    4. It was not necessary that the note should have been protested, and notice given to the guarantor. 20 John. Rep. 364-5, and authorities there cited.
    5. If the defendant relied on the statute of frauds, then the plaintiffs were entitled to a verdict, and the instruction was erroneous, because it has been repeatedly decided in our Courts that the memoranda need not express the consideration, but the same may be shown by parol. See authorities cited in point second.
    6. The guarantor being the payee of the note, executing and delivering the same to the appellants, it imports a consideration in itself. 13 John. Rep. 175, and cases cited in note.
    Crockett & Briggs, for Appellee.
    
   Napton, J.,

delivered the opinion of the Court.

This was a suit '•iginally brought before a Justice of the Peace, upon the following note and guaranty :

«St. Louis, 31st Ma'y, 1842. For value received, we and each of us, ■ promise to pay to Geo. W. Nabb, or order, twenty dollars, negotiable and payable without defalcation.
Newt. Weimar,
Thomas Dick.”

The following endorsement was on the note: «To Messrs. Little & Noecker: I hereby guarantee and secure the payment of the within note, this 13th Aug., 1842. George W. Nabb.”

On the trial before the Court of Common Pleas, the plaintiff gave in evidence the note above set forth, and the endorsement thereon; proved the handwriting of defendant, and the consideration for which the note and guarantee were given, and further proved that said Weimar & Dick were both insolvent at the time said guarantee was executed. The defendant objected to the plaintiffs recovery because the guaranty did not express on its face the consideration for which it was given, and thereupon the Court instructed the jury to find a verdict for the defendant, which the jury accordingly did. An unsuccessful motion was made for a new trial, and the cause is brought here.

This Court has heretofore had occasion to give an opinion in relation to instructions such as the present. In accordance with the doctrines heretofore settled, this judgment must be reversed. Moreover, the doctrine of Wain vs. Walters has not been adopted in this State. Oden, &c., vs. Valle, 2 M. R. 103.

Judgment reversed and cause remanded.  