
    William Mecorney vs. Douglas N. Stanley.
    One who indorses his name in blank on a promissory note several weeks after it is given is not liable as an original promisor.
    Mere forbearance to sue the maker of a note, without any agreement to that effect on the part of the holder, is not a sufficient consideration for a guaranty of the note.
    This was an action of assumpsit on a promissory note, bearing date the 20th of December, 1848, payable to the plaintiff or order on demand, subscribed by John E. Stanley; and on which the defendant’s name was indorsed in blank. The trial was before Hoar, J., in the court of common pleas.
    The declaration contained four special counts; in the first of which the defendant was sought to be charged as an original promisor; and in the others as a guarantor. The consideration alleged in the three last counts was a forbearance to sue John E. Stanley.
    It was in evidence for the plaintiff, that the defendant, on the 19th of February, 1849, paid a part of the note; that at the time of making the payment he said that he had signed a note for his brother John E. Stanley; that he had become surety for his brother to the plaintiff, who furnished him with goods and thereby helped him; that he, the defendant, was secured, and held a bill of sale or a mortgage of the goods and effects of John E. Stanley to secure him ; and that the plaintiff was pressing him for payment.
    The defendant then introduced evidence tending to show that he did not put his name on the note until the 14th of February, 1849. The defendant also put in evidence the deposition of Horace Mecorney, who testified, that, in the latter part of February, or the early part of March, 1849, the plaintiff called on John E. Stanley to pay or secure a note which the plaintiff held against him; that John replied, that he would try to get his brother Douglas, who was in the next room, to sign with him, and asked the plaintiff if he would accept of that, to which the plaintiff answered that he would; that John then went into the room where his brother was, and both came together, immediately, into the room where the witness and the plaintiff were; that the defendant then said to the plaintiff, that if he would not ask him for payment nor call on him for it in less than six months, he would sign with his brother; that the plaintiff then said he would not, and they made a writing to that effect, which the plaintiff signed; and that thereupon the defendant indorsed his name on the note.
    The plaintiff, upon these facts, insisted, that the defendant was liable on the first count in the declaration, if not on the others. But the judge ruled and instructed the jury, that if the defendant did not put his name on the note at the time it was given, but at the time and in the manner stated in the deposition of Horace Mecorney, he was not liable on the first count; and that to sustain the three last counts, it was not sufficient for the plaintiff to prove a forbearance to sue John E. Stanley; but that he must prove an agreement, binding upon the plaintiff, to forbear to sue John E. Stanley; that an agreement not to sue the defendant would not be sufficient and that there seemed to be no sufficient evidence in the case, from which' the jury could infer an agreement to forbear to sue John E. Stanley, leaving that question, however, to the decision of the jury.
    The jury returned a verdict for the defendant, whereupon the plaintiff alleged exceptions.
    
      W F. Slocum, for the plaintiff.
    
      F. H. Dewey, for the defendant.
   Bigelow, J.

It is very clear that the plaintiff could not recover against the defendant on the first count charging him as an original promisor, because the evidence proved that the defendant’s name was not put on the back of the note until several weeks after the note was given. Union Bank of Weymouth and Braintree v. Willis, 8 Met. 504; Benthall v. Judkins, 13 Met. 265.

As the defendant did not partake in the original consideration of the note by becoming a party to it, at its inception, the plaintiff was bound to show a valid consideration for the undertaking of the defendant. For this purpose he relied on his three last counts, and offered evidence tending to show a forbearance to sue John E. Stanley, the original promisor. But it did not appear that there was any agreement to give time to the original promisor. On the contrary, his liability to pay the note on demand remained unchanged. The only consideration therefore for the defendant’s promise was the preexisting debt of John E. Stanley, with which the defendant had no concern. But a mere forbearance to sue, without any promise or agreement to that effect, by the holder of a note, forms no sufficient consideration for a guaranty. It is a mere omission on the part of the creditor to exercise his legal right, to which he is not bound by any promise, and which right he may at any moment and at his own pleasure enforce. There being in this case no agreement to forbear to sue, the creditor was not hindered or delayed. He could have brought his suit against the promisor at any time, so that he sustained no injury or inconvenience sufficient to constitute a consideration for the promise; and, on the other hand, the original debtor received no benefit or advantage whatever, because he was liable to be sued at any moment, and so the consideration fails as to him. There was no damage to the creditor or benefit to the debtor upon which the consideration of a promise can rest. It is not therefore true, as a proposition of law, that forbearance to sue a third person is, of itself, a sufficient consideration for a promise; and the court would have erred, if they had complied with the plaintiff’s request, and given any such instruction to the jury. To constitute a forbearance to sue a third person a good consideration, for a promise by a stranger to the original consideration, it must have been in pursuance of an agreement to forbear. In such a case, the injury to the promisee and the benefit to the debtor both concur in malting' the consideration valid. It is undoubtedly true, that an actual forbearance to sue may often, in connexion with other facts, be evidence of an agreement to forbear, and, as such, form a good consideration for a promise. Walker v. Sherman, 11 Met. 170; Breed v. Hillhouse, 7 Conn. 523. But this is a very different proposition from that contended for by the plaintiff, that forbearance of itself, without any promise, is a good consideration. Byles on Bills, 90, note; Crofts v. Beale, 11 C. B. 172.

The exception, founded on the remark of the judge, as to the insufficiency of the evidence to prove an agreement on the part of the plaintiff to forbear to sue the original promisor, cannot be sustained. The question, whether there was such an agreement, was left by the court to the jury, who returned a verdict for the defendant; and although there may have been, upon the facts reported, sufficient evidence from which the jury might well have inferred such agreement to forbear, still the remark of the judge, being only a comment on evidence, forms no valid ground of exception. Davis v. Jemey, 1 Met. 221; Mansfield v. Corbin, 4 Cush. 213. The remedy of the plaintiff, for any error in this respect, was by a motion for a new trial. Exceptions overruled.  