
    
      Mary M. Thomas vs. Dr. Randal Croft.
    
    Forbearance to sue is a sufficient consideration to support a promise to guarantee the debt of another; and it is not necessary that, at the time of the promise, there should be an express stipulation by the creditor to forbear for a definite time; but if there be an understanding, generally, that the debtor shall be indulged, and there be an actual forbearance for a reasonable time, it will be sufficient, 
    
    On such a guaranty no cause of action accrues, and, consequently, the statute of limitations does not begin to run, until there has been forbearance for a reasonable time.
    
      Before Wardlaw, J. at Greenville, July, extra Term, 1845.
    Assumpsit on the written guaranties of two bonds. The plaintiff held two bonds of B. M. Pearson, both dated in January, 1838, payable to herself — one the 1st of January, 1839, and the other the 29th of March, 1839. About the 1st. of February, 1839, the defendant, the brother-in-law of B. M. Pearson, and I. L. Pearson, his brother, signed, in Charleston, writings on the bonds in the following words, viz:
    First bond. “ I guaranty the payment of the within bond.
    I. L. Pearson.
    R. Croft.”
    
      Second bond. “I guaranty tbe final payment of tbe within bond.
    I. L. Pearson.
    It. Croft.”
    This action was commenced in June, 1843. The declaration alleged, in various counts, the consideration of each guaranty to have been an agreement to forbear for a ■reasonable time — for one year, for two years, for three years, and for four years. The pleas were the general issue and the statute of limitations.
    The whole testimony was in writing. The substance of it, as reported by his Honor, the presiding Judge, to the court of appeals, was as follows.
    “ B. M. Pearson had borrowed money from the plaintiff, for which bonds were given, in Alatama, bearing interest at 8 per cent. The plaintiff, in Charleston, having heard some rumors of B. M. Pearson’s embarrassment, expressed her uneasiness to the defendant, who seemed indignant, and offered to guarantee for him to the amount of $100,000. In the course of the conversation between the parties, at the time the guaranties were signed, the plaintiff said that she did not wish to sue, and if she got the guaranties she would be satisfied ; defendant said that B. M. Pearson was making good crops, and would be good if he got time; she said all she wanted was interest and her debt secured ; but no time was stipulated, nor was there any special mention of forbearance. After the transaction the defendant wrote to B. M. Pearson, saying that out of regard for him he had volunteered to guarantee, as the plaintiff would else have been fretful, and that B. M. Pearson would have no difficulty if interest was paid, regularly. B. M. Pearson paid the interest on the bonds annually, until the 1st. of January, 1843. The residence of the plaintiff, before and at the time of the guaranties, was in South Carolina. The next winter she was in Alabama, and much with B. M. Pearson, and she has since been living with her daughter, Mrs. Pickens, in Alabama.”
    Under the instructions of his Honor, the jury found for the defendant. He was of opinion, and so charged, that no sufficient consideration for the guaranties had been shewn, and that, if there was a sufficient consideration, the right of action had been barred by the statute of limitations.
    The plaintiff appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.
    
      Henry, for the appellant.
    Under the construction, which has been adopted in this State, of the statute of frauds, the consideration of defendant’s guaranties may be shewn by parol. Fyler vs. Givens, 3 Hill, 48. That forbearance to sue is a sufficient consideration, will hardly be disputed. Is there proof of forbearance in this case 1 It is not the promise to forbear which is the consideration, but the actual forbearance. The stipulation to forbear need not be for a definite time; it is enough if it be to forbear indefinitely, followed by an actual forbearance for a reasonable time. Cro. Jac. 683; 4 Johns. R. 237; 1 Saund. R. 210.
    When did the statute of limitations begin to run ? Surely not until there had been forbearance for a reasonable time. This question should at least have been submitted to the jury.
    
      Waddy Thompson and Perry, contra.
    There was no proof of any promise to forbear at all. But supposing there was some understanding that there should be a forbearance, yet it is not sufficient to support the promise, 1st. because it was too indefinite, and 2d. because it was not binding on the plaintiff. If the promise to pay the debt was void when made, for want of consideration, the subsequent forbearance did not make it good. They cited Cro. Jac. 19; Cro. Car. 241; 1 Penn. R. 383; 3 Amer. Jur. 273; 4 Munf. 273; 2 Hen. and Munf. 124; 3 McC. 160; Pow. on Con. 174, 213; Ch. on Con. 27; 1 Saund. Pl. & Ev. 147; 1 Rich. 9; 2 N. & McC. 135.
    Is not the plaintiff barred by the statute of limitations'? 1 Mill, 168 ; 2 Ib. 441; 2 Bail. 544: 1 Bail. 620.
    
      
      
         Johnson vs. Whilchcott, 1 Roll. Abr. 24, pi. 33, and the language of Whashington, J. in Lonsdale vs. Brown, 4 Whash. C. C. R. 151, support the doctrine of this case, that forbearance to sue for a reasonable or convenient time, is a sufficient consideration to support a promise to answer for the debt of another. For the general rules on the question, when forbearance to sue is, and when it is not, a sufficient consideration, see 1 Wheat. Sel. 48, et sea; 1 Step. N. P. 255. R.
    
   Curia, per O’Neall, J.

In this case there are two questions ; 1st. Are the guaranties without consideration ? 2d. Is the plaintiff barred by the statute of limitations 1

1. That forbearance is a sufficient consideration to support a promise to guarantee an existing debt, cannot be doubted; for the debtor obtains advantage, delay of payment, thereby; and the creditor is put to disadvantage, by having the payment of his debt postponed. This makes forbearance a sufficient consideration to support a collateral promise, within all the rules laid down in the elementary books; and I do not understand this to be denied by the learned counsel for the defendant. They, however, contend, that without an express stipulation for forbearance, for a definite time, at the making of the contract of guaranty, the consideration would not be sufficient. But I am satisfied, if the guarantors sign the guaranty upon an understanding that the debtor should be indulged generally, and there be an actual forbearance for a reasonable time, it is enough. Such seems to have been the opinion of that eminent Judge, Hobart, in the case of Mapes vs. Sidney, Cro. Jac. 683. In that case it was held, by the whole court, that a general forbearance to sue, accompanied by an averment that the plaintiff did forbear to sue for a long time, to wit, a year and a half, would be a sufficient legal consideration to support the promise to guarantee the existing debt of a third person.. It is true, Hutton and Winch held that the “forbearance to sue,” should be considered a total and absolute forbearance. Hobart, however, held, as I think most correctly, that forbearance for a reasonable time was enough, and that this was shewn by the pleadings, and therefore the plaintiff was entitled to recover. This view of the C. J. has met with, I think, a much more general concurrence than that of his brethren. The case of Elting vs. Vanderlyn, 4 Johns. R. 237, adopts fully the judgment of C. J. Hobart; for the court there distinctly say, forbearance generally is sufficient consideration “without setting forth a specific time. There was,” say they, “ a total forbearance for a long time, which brings the case within Mapes vs. Sidney.”

In this case, if it be assumed that there was no stipulation how long the plaintiff should forbear, but that she agreed to forbear generally, and did actually forbear for more than four years, it is, according to these cases, amply sufficient to support the promise of the defendant to guarantee the debt of his brother-in-law, Bird M. Pearson.

But I think it is to be gathered from the case that the understanding between the parties was that the plaintiff should forbear to sue as long as the interest on her debt was annually paid, and this would be a forbearance of such a definite character as would relieve the case from the defendant’s objection. The plaintiff had been informed that Pearson was in doubtful circumstances; to the defendant she communicated her fears about the safety of her debt; this he met by an assurance that Pearson was making fine crops, and if she would give him time he would be good for her debt. After making, in substance, this statement, her daughter proves that her mother, the plaintiff, said to the defendant, ‘‘ all she wanted was to get the interest on her money, and have her debt secured, and if he, Dr. Croft, and I. L. Pearson, would guarantee the payment of the bonds, she would be satisfied. She said she did not wish to sue the bonds ; that she only wanted the debt secured, and that she would be satisfied with the guaranties of those gentlemen.” In consequence of this, the defendant and I. L. Pearson signed the guaranties. Taking all these facts together, it seems to me to be plain that it was the understanding between the plaintiff and the guarantors, that if they would guarantee the bonds, she would, as long as Pearson paid the interest annually, forbear to sue. This conclusion is much strengthened by the fact that Pearson paid the interest to January, 1843, and that the plaintiff did not sue until after that time. If, however, there be a doubt about this construction, still, on the motion to set aside the verdict found under instructions, which assumed that there was no proof to establish forbearance for a definite time, it is enough that, in our judgment, there are facts from which a jury may find as I have suggested. If that should ultimately be the conclusion of the jury, there can be no doubt about the defendant’s liability; for then his written promises to guarantee Pearson’s bonds, would be fully within Fyler vs. Givens, 3 Hill, 48. For then the promise here, would, as there, be predicated of a forbearance to sue for a definite time ; and although not appearing in the writing, yet that consideration being proved by evidence aliunde, would be enough to support the action.

2. If I am right in this construction of the testimony, there can be no pretence for the statute of limitations ; for, until there was a default in the payment of interest, the plaintiff would have had no right of action against the defendant. But I am persuaded that in no point of view can the statute be a defence; for the rule is clear that “ the statute of limitations does not begin to run or operate from the time when a contract is actually made, unless a full and comflete cause of action instatitly accrue thereon.” Ang. on Lim. 181.

Let it be asked what cause of action the plaintiff had on the guaranty on the day of its date 1 It is itself collateral and conditional, only to be enforced if the original debtor, Pearson, does not pay. The plaintiff agreed to forbear to sue him, and that is the consideration of the defendant’s promise. How then can she have any right to sue him, until she has at least forborne to sue the original debtor for a reasonable time ? It is clear she has none. What is that reasonable time? Not less than a year and a day, would be the answer of Mapes vs. Sidney. Here the facts lead to the same conclusion. Dr. Croft said, Pearson is making good crops; give him time, and he will be able to pay. The defendant signed the guaranty, February, 1839; the least he could expect or demand was, that Pearson should, before suit or demand of payment, be allowed to make one more crop. That, in any point of view, would carry the forbearance to October or November, 1839, and, possibly, to January, 1840. Any of these periods is enough for the plaintiff; for her writ was sued out in June, 1843, and four years had not therefore elapsed from the accrual of her right to sue the defendant. The motion to set aside the verdict, and for a new trial, is granted.

Richardson, Evans, Butler and Frost, JJ. concurred.  