
    Philo Parsons v. George S. Frost and Chas. W. Noble.
    
      Consideration for admission of liability.
    
    1. One who indorsed the note of his partner and brother-in-law, and afterwards, on condition that this note should be cancelled, indorsed another, and when the last note was about to outlaw joined the maker in admitting liability thereon and promising payment in order to save-a suit, could not claim that such admission and promise were without consideration.
    2. Where a verdict is directed, the party maintaining it in the appellate-court can rely only on the undisputed testimony.
    Error to "Wayne. (Speed, J.)
    October 9. —
    November 19.
    Assumpsit. Defendants bring error.
    Affirmed.
    
      DeForest Paine for appellants.
    One who puts his name-upon a note upon a transaction distinct from the original formation of it is not liable unless upon some new consideration: Freeman v. Ellison 37 Mich. 459; Tenney v. Prince 7 Pick. 243; Jackson’s adm’r v. Jackson 7 Ala. 791; Perrin v. Broadwell 3 Dana 597; Collier v. Mahan 21 Ind. 110; Bingham v. Kimball 17 Ind. 396; Farnsworth v. Clark 44 Barb. 601; Ware v. Adams 24 Me. 177; Mecorney v. Stanley 8 Cush. 85; Pratt v. Hedden 121 Mass. 116; Sawyer v. Fernald 59 Me. 500; Brandt on Prin. and Surety § 9; Ellis v. Clark 110 Mass. 389; 1 Dan. Neg. Inst. § 679; Stagg v. Linnenfelser 59 Mo. 336; Clopton’s ex’r v. Hall 51 Miss. 482; Hayden v. Weldon 14 Vroow. 128; 1 Pars. Cont. 468 Croft v. Beale 11. C. B. 172; Small v. Smith 1 Den. 583; Tinker v. McCauley 3 Mich. 188; Nelson v. Serle 4 M. & W. 795 ; if the instrument is given merely as collateral security for an existing debt, the right of action on the original debt being plainly and in all respects unaltered, it is not. given for a valuable consideration: 1 Am. Lead. Cas. (5th ed.) 422; Roxborough v. Messick 6 Ohio St. 448; Thompson v. Poston 1 Duv. (Ky.) 389; Trustees of Iowa College v. Hill 12 Ia. 462; Ryan v. Chew 13 Ia. 589; Buddick v. Lloyd 15 Ia. 441; Goodman v. Simonds 19 Mo. 106 ; Lee’s adm’r v. Smead 1 Metc. (Ky.) 628; Van Wyck v. Norvell 2 Humph. 192; Bertrand v. Barkman 13 Ark. 150; Nutter v. Stover 48 Me. 163; Kirkpatrick v. Muirhead 16 Penn. St. 117; Vatlerlien v. Howell 5 Sneed 441; Prentice v. Zane 2 Grat. 262; Jenkins v. Schaub 14 Wis. 1; Bowman v. Van Kuren 29 Wis. 209; Curtis v. Mohr 18 Wis. 615; Jenness v. Bean 10 N. H. 266; Williams v. Little 11 N. H. 66; Fletcher v. Chase 16 N. H. 38; Rice v. Raitt 17 N. H. 116; Stalker v. M’Donald 6 Hill 93; Fenouille v. Hamilton 35 Ala. 319; Bone v. Tharp 63 Ia. 223; contra, Swift v. Tyson 16 Pet. 1; Gibson v. Conner 3 Ga. 47; Payne v. Bensley 8 Cal. 260; Robinson v. Smith 14 Cal. 94; Naglee v. Lyman 14 Cal. 451; Manning v. McClure 36 Ill. 490; Bank Republic v. Carrington 5 R. I. 515; Bank v. Chambers 11 Pick. (S. C.) 657; Atkinson v. Brooks 26 Vt. 569; an agreement to delay the collection of a debt will not be implied from the receipt by the creditor of a note not yet dne as collateral security therefor: Austin v. Curtis 31 Vt. 64; Gahn v. Niemcewicz 11 Wend. 312; Burke v. Moore and Cruger 8 Tex. 66; Wade v. Stanton 6 Miss. 631; Cary v. White 52 N. Y. 138; United States v. Hodge 6 How. 279; Pring v. Clarkson 1 B. & C. 14; Weakly v. Bell 9 Watts. 273, 282; Bedford v. Deakin 2 Stark. 178; 1 Smith’s Lead. Cas. H. & W. notes (7th Am. ed.) 452; Taylor v. Allen 36 Barb. 295; Fisher v. Sharpe 5 Daly 214; Twopenny v. Young 3 B. & C. 208; Emes v. Widdowson 4 C. & P. 151; Day v. Leal 14 Johns. 404; Elwood v. Deifendorf 5 Barb. 398; Sigourney v. Wetherell 6 Met. 553; Norton v. Eastman 4 Greenl. 521; Story Prom. Notes §§ 416, 485 ; unless the collateral has been negotiated by plaintiff: Kemmil v. Wilson 4 Wash. C. C. 308; if there were no original liability upon the note none was created by the subsequent promise to pay it: Commonwealth Ins. Co. v. Whitney 1 Met. 21; Nutter v. Stover 48 Me. 163; see Rood v. Jones 1 Doug. (Mich.) 192.
    
    
      Moore & Canfield for appellee.
    The original indebtedness of the maker of a note is sufficient consideration for an indorsement of a renewal note after the latter was executed, if it was understood when it was made that the indorser should be asked to indorse: Moies v. Bird 11 Mass. 436; Hawkes v. Phillips 7 Gray 284; Lovering v. Fogg 18 Pick. 540; Leonard v. Wildes 36 Me. 265; 2 Pars. N. & B. 125, 126; McNaught v. McClaughry 42 N. Y. 22; Brandt on Suretyship § 7; Williams v. Perkins 21 Ark. 18; forbearance to sue is sufficient consideration for an indorsement obtained to prevent a suit: DeGolyer on Guarantees 29; Oldershaw v. King 2 H. & N. 520; Breed v. Hillhouse 7 Conn. 523; Walker v. Sherman 11 Metc. 170; Johnson v. Wilmarth 13 Metc. 416.
   Sherwood, J.

This is an action of assumpsit, brought by the holder and owner of a promissory note against the maker and indorser. The declaration is special against the indorser, and also contains the common counts. Defendant Noble alone appears and defends. Under the general issue he gave notice that he would show on the trial that the note was given to secure the antecedent debt of Frost alone, and upon no other consideration ; that he had not indorsed the note when it was given by Frost to the plaintiff, nor had he been requested to, and had no knowledge of the making or delivery of the note; that some time after the same had been delivered to the plaintiff, at his request, he, defendant, indorsed the note without consideration from any one, and that the note and indorsement were without consideration other than the pre-existing indebtedness of Frost to plaintiff; that there was no agreement with either of the parties that he, Noble, would indorse the note ; and that his admission of liability on the note, contained in the indorsement by him and Frost, was obtained at the request of the plaintiff and without any consideration to defendant Noble.

The cause was tried at the "Wayne circuit before a jury, and a verdict for plaintiff directed by the circuit judge.

The note and indorsements are as follows :

“$2000. Detroit, Mich., June 15, 1870.
Sixty days after date, I promise to pay to the order of Charles W. Noble two thousand dollars, at the First National Bank of Detroit.
Yalue received, with interest at the rate of ten per cent.
Geo. S. Frost.
(Indorsed) Charles W. Noble.”

Also indorsed on the back of the note is the following:

“ For value received, we admit our liability upon the within note, and hereby promise to pay the amount due thereon, principal and interest, on demand, less any payment which should be applied thereon.
Geo. S. Frost.
Charles W. Noble.
Dated August 11, 1816.”

It appears from the testimony undisputed that the defendants are brothers-in-law, and were partners in business when the note and indorsement and undertaking therein appearing were made; that on that day the plaintiff held the defendant Frost’s note, indorsed by the defendant Noble, due one day after date, and that said note was taken up, and the note sued on was given in its stead. The defendant Noble further says that he would not have indorsed the second note unless the plaintiff had canceled the other; that he and Frost signed their indorsement of liability and the undertaking therein contained at the request of plaintiff’s agent, to prevent the Statute of Limitations running against the note. This is the defendants’ testimony, and if it shows a consideration for Noble’s indorsement, then the verdict must stand; if not, the case should have been submitted to the jury.

When the plaintiff had introduced the note and indorsements in evidence, a prima facie case was made for recovery.

Did the evidence subsequently offered by the defendant ■defeat the plaintiff’s prima facie case ? We think it did not. The note was within a few days of being outlawed when the indorsements asked for by plaintiff’s agent were made. The plaintiff himself had previously complained to Noble of Frost’s neglect to pay, and the agent stood in the presence of Noble asking him to do that which was necessary to prevent suit. He proposed to defer payment or suit till plaintiff might return from Europe. The defendant then gave his indorsement, and it would be doing violence to reasonable intendment to say'that he did not do so upon the conditions and terms proposed, and the forbearance must be held a sufficient consideration for the indorsement.

There are other grounds upon which, perhaps, the liability of Noble might be safely rested, had the case gone to the jury, but we are not at liberty to consider them upon this record. The plaintiff can only rely upon the undisputed testimony. There seems to be no question but that Frost desired that Noble should sign the indorsement, and in making it Noble not only expressly admitted'his liability but promised to pay the note. He cannot now be heard to say he never made such promise.

The judgment must be affirmed.

The other Justices concurred.  