
    Mary M. Thomas, v. Randell Croft.
    To sustain an action against one as the guarantor of a bond, in consideration of forbearance to sue, it is necessary to prove the original agreement between the parties, the one to guaranty, if the other would forbear, as well as to aver, and prove the subsequent actual forbearance, as a performance of the condition precedent.
    A contract must be mutual; and that which at first was void, cannot subsequently acquire validity, by the act of the party who would claim benefit from it.
    Tided before Mr. Justice Wardlaw, at Greenville, Spring Term, 1846.
    This was an action of assumpsit on the guaranty of two bonds. The declaration alleged, in various counts, the consideration of the guaranty to have been an agreement to extend forbearance to the obligor of the bonds, for a reasonable time. The pleas were, the general issue and the Statute of Limitations. The main question upon which the case turned, was, whether there was any consideration for the guaranty; and this was resolved into the more narrow enquiry, whether there was any agreement for forbearance? There was much testimony, and the case was very fully argued. His honor, having adverted to the testimony and stated the law, leit the question with the jury. They, after being out all night, rendered a verdict for the defendant.
    The plaintiff appealed and moved for a new trial, because his Honor erred in charging the jury that a forbearance without an agreement to forbear, is not a sufficient consideration, though the guaranty be in writing—and for several other reasons not discussed in the opinion of the Court.
    
      Henky, for the motion.
    The agreement to forbear, is not the consideration of the guaranty, but the actual forbearance is—Fyler v. Givens, Riley’s Law Cases, 56.
    Thompson, contra.
    
    A promise to guaranty with no consideration, at the time, is bad. A promise to forbear for a stipulated time, is sufficient to support a guaranty, but not for a short time; Creswell v. Dean, 1 Hill, 227. To affect a deed under seal, the agreement must be of equal solemnity. The plaintiff was not debarred from bringing suit the next day. 3 Amer. Jur. 274. Agreement to forbear is prima facie evidence, but forbearance, is to be proved; Beven v. Cowling, 1 Pop. 183; Philips v. Bateman, 16 East. 356; Earle v. Peale, 1 Salk, 386; Tucker v. Woods, 12 Johns. 190. Contracts must be reciprocal; Livingston v. Rogers, 1 Cain. 583. Promises must be made at the same time, and must be mutually dependant; they must also be mutually obligatory; 1 Chitty on Con. 297; 1 Chitty on Con., 15.
    Perry, same side.
    No additional credit was given on account of the guaranty. The plaintiff was informed that it was a nudum pactum. The bonds had been given long before the guaranty; 1 Chit. on Con. 27; Philips v. Bateman, 16 East., 356; Tucker v. Woods, 12 Johns. 190. Promises must be concurrent and mutually obligatory; 42 Amer. Jur., 274. The consideration must not depend on subsequent merits, but must be sufficient at the time; 42 Amer. Jur., 275. The Court cannot decide what a little time is. Reasonable time is a fact doubtful, and for the jury; Strange 508; 2 M’C., 388; Brock v. Thompson, 1 Bail., 322.
   Wardlaw, J.,

delivered the opinion of the Court.

The facts have been settled by the verdict, and in relation to them the motion here made has not been pressed in the argument. The plaintiff’s counsel contends that forbearance itself was the consideration, and that the plaintiff having averred and proved a very long forbearance, the law requires no agreement to forbear, or at any rate will imply it: and so there was misdirection in the instructions that any agreement, any concurrence of minds concerning the forbearance, was necessary.

If the jury from the instructions had inferred an agreement, we certainly should not have disturbed the verdict: but when they, under a very liberal definition of agreement given to them, have negatived the existence of any agreement in any form, the question is whether in opposition to their finding the law dispenses with the agreement, or will necessarily imply it. If so, the guaranty may have been signed wholly without consideration, yet by subsequent forbearance a consideration was supplied. The same must have been the result, if the plaintiff, instead of forbearing, had relinquished some lien held on the defendant’s property, or paid some debt for the defendant, or in some other way done an act beneficial to the defendant or injurious to himself, after the defendant had without consideration signed the guaranty. But there must be mutuality in contracts, and that which at first wTas void, cannot acquire validity only from the act of the party who would claim benefit from it.

The case most favoring the plaintiff’s view, is the case of Yard v. Eland, 1 Ld. Ray., 368. There in assumpsit the plaintiff averred, that in consideration, that the plaintiff at the special instance and request of the defendant would forbear, the defendant promised, and that plaintiff relying upon the defendant’s promise, did forbear. A motion in arrest of judgment was made, because the plaintifPs promise to forbear was not sufficiently averred, “for the defendant might have been all the time in fear.” Held, that the averment shewed on the part of the plaintiff sufficient consent.

The request on one side and consent on the other, make the agreement.

It is of no consequence that the plaintiff might not have been bound by the agreement to such extent, that she could not within the time of forbearance stipulated or implied, have sued the original debtor. The consideration of the guaranty is the promise to forbear, followed by the actual forbearance. If before the expiration of the time of forbearance, the plaintiff had sued, the consideration would have failed and the defendant would have been discharged. The forbearance is a condition, precedent which the plaintiff is obliged to aver in suing upon the guaranty. The contract is on the side of the defendant: “If y ou will forbear, I will guaranty:” on the side of the plaintiff, assent to the proposition followed by the actual forbearance. Just as if the defendant had said, “if you will furnish goods to a third person, I will guarantee:” the plaintiff, if he agreed, would not have been bound to furnish the goods at any rate, for refusal would not have been liable to the third person, and at the suit of the defendant would only have been answerable for the damages occasioned to the defendant by the breach:—yet, if the plaintiff had furnished the goods, the defendant would have been liable on his guaranty. This matter is considered and settled in the case of Martin, v. Burn & Veaux, 7 Adol. & Ellis, 19; 34 E. C. L. Rep.

As the case has been made by the verdict, the forbearance was without the request of tire defendant, and without any understanding between the parties; the consideration has not been proved, and the guaranty is nudum pactum.

The motion dismissed.

Evans, J., and Frost, J., concurred.  