
    Benjamin Adams versus Aaron Bean.
    Where a lease was made to two, reserving rent, and one of the lessees with the lessor executed it; a guaranty of the payment of the rent, indorsed on the lease by a third party was held to be binding on the guarantor, although he stated, at the time of signing, that the instrument was not binding without the signature of the other lessee.
    The permitting the lessees to occupy the premises demised by such lease, in consideration of such guaranty, was sufficient to raise a consideration for the undertaking of the guarantor.
    This was assumpsit upon a written promise made and signed by the defendant, upon the back of a lease, by indenture, of a certain shop in Boston, purporting to be made by the plaintiff to Daniel Weeks and Ebenezer O. Fifield, shop-keepers arid copartners. The lease was executed by the plaintiff and Weeks only, although written as if to be executed by Fijield also. The writing- indorsed, which was subscribed by the defendant, was as follows, namely, * “ This may certify that I, the subscriber, of Boston, [*138] &c., do guaranty the faithful performance, on the part of Daniel Weeks and Ebenezer 0. Fijield, of the within agreement, for value received.”
    At the trial, which was had before the present Chief Justice, November term, 1813, upon the general issue joined, it was proved, that, before the making of the lease, Weeks agreed with the plaintiff to procure the defendant’s guaranty for the payment of the rent. When the lease was executed by Weeks and the plaintiff, Fifield was absent from town. Weeks took the lease to the defendant, who at first refused to sign the promise on the back of it, because FifieW’s name was wanting. Upon a second application, and being pressed by Weeks, the defendant signed the promise, at the same stating to Weeks that the instrument was not binding without the signature of Fifield, and having first cancelled the words, “ for value received.” The lease was then delivered to the plaintiff, without any informatior to him of the conversation between Weeks and the defendant. The shop was occupied by Weeks Fifield, in pursuance of the terms of the lease, until the rent accrued, which is demanded in this action, and the just amount was established by the verdict found for the plaintiff.
    It was also in evidence, that there was a subsisting connexion by-marriage between Fifield and the defendant, which was supposed to be the motive of his guaranty ; he having frequently, by indorsing, and in other ways, supported the house of Weeks fy Fifield.
    
    Several objections were made, at the trial, to the plaintiff’s re covering upon this evidence ; namely, 1. That the indenture was incomplete and inoperative for want of the signature and seal of Fifield, and that, therefore, the promise predicated upon it was void. 2. That, it being a promise to pay the debt of another, it was void for want of a sufficient consideration expressed in the writing. 3. That, from the conversation which took place between Weeks and the defendant, at the time the promise was signed, it was apparent it was not to be * delivered, unless Fifield’s [* 139] name was obtained to the lease ; and so that there was no contract between the plaintiff and the defendant.
    The two first objections were overruled by the judge ; and as to the third, he instructed the jury, that, if they believed, when the promise was signed by the defendant, at the request of Weeks, it was expected and intended that it should be delivered over to the plaintiff, whether the defendant thought it was void or not, it must bind him ; and that putting it into the hands of Weeks, without any directions to him not to deliver it, oi to inform the plaintiff that the defendant thought it incomplete, was sufficient evidence of that intent.
    A verdict being returned for the plaintiff, a new trial was moved for on the part of the defendant.
    The Solicitor- General and Monroe, for the plaintiff.
    Bigelow, for the defendant.
   Parker, C. J.

There can be no doubt, that the covenants in the lease were binding upon Weeks, although Fijield, who was intended to be a party to it, never executed it. Each party would have been bound jointly and severally, had both executed the indenture ; and the execution by one, who took possession under the lease, must have made the contract complete as to him.

As to the second question, whether the defendant is liable on bis promise, which, although in writing, contained no words showing the consideration for which it was given ; it is to be observed, that it has never yet been determined in this Commonwealth, that such particularity is necessary. But, if it had been so decided, we think a written engagement upon the back of a lease, that the parties to it should perform their undertakings, sufficiently expresses the consideration. For it may and ought to be presumed, that the lease would not have been obtained without such guaranty, and the permitting of one to occupy, in consideration of the promise in writing of another to pay the rent, is, we think, sufficient to raise a consideration of the promise.

[ * 140 ] * The third objection is answered by the verdict of the jury. It surely cannot be pretended that a party, knowing of a formal defect in an instrument, which he undertakes shall be performed by one of the parties, shall take advantage of such informality, as against one who may be ignorant of the defect. If the guaranty was intended to be delivered as it was, the defendant reserving to himself a right to set up the defect whenever he should be called upon to perform his promise ; this would be a fraud, which would not entitle him to any favor, beyond what strict law would give him. The jury have found, that the writing was intended to be delivered, without regard to the procuring of Fifield's name to the lease ; and they determined rightly upon the evidence reported.

Judgment on the verdict. 
      
      
        Cutter vs. Whittemore, 10 Mass. Rep. 442. — Sed vide Bean vs. Parker & al., 17 Mass. Rep. 591.
     
      
      
        Quaire, if, after entry and enjoyment under the lease, they were not both liable ? Co. Lit. 231. — Burnett vs. Lynch, 5 B. C. 596. — 8 D. & R. 368 — Eure vs. Strickland, Cro. Jac. 240. — Butt vs. Cumberland, Cro Jac. 399, 521. — 3 Bulst. 163. — 1 Rolle, 359. — 2 ib. 63. — Poph. 136. — Godd. 276. — Wooton vs. Hele, 1 Mad. 291, 292. — 4 Cruise, Dig. 393, 3d ed. — Com. Dig., Con., A.— 1 Vin. Ab., Cond. 1, a. 2. — Dyer, 136, pl. 66. — Locke vs. Wright, 1 Str. 570. — 8 Mod. 40. — 38 Ed. 3, 8. a. — 3 H. 6, 26. —45 Ed. 3, 11, 12. — Staines vs. Morris, 1 Ves. & B 14.— Platt on Cov., p. 18.— Hawkins vs Sherman, 3 Car. P. 462.— Com., Land, Ten. 273.
     
      
       It has since been held, that it is not necessary that the consideration should be in writing. Packard vs Richardson, 17 Mass. Rep. 122. — Sed vide note to Lent & al. vs. Padelford, 10 Mass. Rep. 237, 3d ed.
      
     
      
      
        Hunt vs. Adams, 5 Mass. Rep. 358. — Carver vs. Warren, 5 Mass Rep. 545.— Bailey vs. Freeman, 11 Johns. 221. — Leonard vs. Vredenburgh, 8 Johns. 29. — Stadt vs. Lill, 9 East, 348. — 1 Camp. 342 — Warrington vs. Thurber, 6 East, 89. — Russell vs. Mosely, 6 Moore, 521. — 3 Br. & Bingh. 21]. — Boehm vs. Campbell, 3 Moore, 15. — Morris vs. Stacey, 1 Holt, N. P. C. 153. — Pace vs Marsh, 1 Bing. 216. — Mosely vs. Boothby, 3 Bing. 106. — Saunders vs. Wakefield, 4 B. A 595. — Stead vs. Lidiard, 8 Moore, 2. — 1 Bingh. 196.
     
      
       Vide Cutter vs. Whittemore, 10 Mass. Rep. 445.—Johnson vs. Baker, 4 B. & A. 440
     