Thompson v. Linscott

Mellen C. J.

By the report it appears that the plaintiff offered to prove that Samuel Linscott, one of the signers of the note declared on, in 1819 was part owner of a piece of land in common with Jeremy Linscott, the other signer; and then conveyed his part, being ten acres, to the defendant, who was then a minor, for the price of $400 ; — that a part of the purchase-money was paid to Samuel Linscott; and the note in question given for the balance to Thompson, the plaintiff, to whom Samuel stood indebted. The defendant being a minor, his security would have been unavailing; and accordingly the note was signed by Samuel and Jeremy as the friends of, and in the nature of sureties for Benjamin; who, though he did not then sign the note, promised that he would sign it, when he should come of age, and pay it. A part of the note having-been paid by the defendant during his minority, he, after he became of full age, did sign the note on the third of April, 1821, engaging to pay the balance due upon it. — This proof was rejected by the Judge who presided' in the trial of the cause; and the question is, whether it was rejected pi'opcrly. In deciding this question, we may consider the facts in the same manner as though they had been proved, and the inquiry then is whether they are sufficient to maintain the present action ; if so, the nonsuit must be set aside.

The principal objection to the plaintiff’s right to recover seems to be the want of sufficient consideration to support the defendant’s promise.

It is perfectly settled, that in an action on a promissory note by the promisee against the promisor, it is competent for him to shew, by parol evidence, that there was no consideration received by him, although on the face of the note a consideration is expressly acknowledged to have been received. It is. equally clear that it is not necessary that the consideration of the promise should appear on the face of the note; but it is always a subject of proof by parol evidence; as in the case of Bank notes, for instance, where the usual words “ value received” are seldom, if ever, inserted. In the case before us, therefore, we perceive nothing irregular in the introduction of parol evidence to prove a consideration, by shewing the circumstances under which the note was signed in the first instance, and by the defendant, after his arrival at full age. Such proof does not tend to contradict or explain the written contract, but is offered for the express purpose of confirming and giving it effect. — It is not necessary to consider the defendant’s engagement and signature in the light of a guaranty of a debt due from Jeremy and Samuel Linscott; because it appears that the defendant was the purchaser of the land, and bound in equity to pay for it; and he, in fact, has paid all the sums which have been indorsed. He was under a moral obligation to pay the note in consequence of his having received a conveyance of the land, and having engaged, during his minority, to sign and pay the note when he should arrive at full age; — and such an obligation is in law a good and valid consideration to support a new promise made after full age. This principle is too. plain to require any authorities to establish its correctness.— Suppose the note in question had never been signed by Jeremy and Samuel Linscott; but that the defendant’s verbal promise had been accepted by the plaintiff at the time the deed was given, and that on the third of April 1821, he had made and signed the note alone; .why should it not bind him ? Is it less binding on him, because two other persons bad signed it a year before ? It was a promise to pay a debt of his own, which he was under a moral obligation to pay, and which, while a minor, he had faithfully promised to secure in legal form, when legally capable of binding himself, and honestly to pay afterwards.

Neither is the defendant’s promise within the operation of the statute of frauds ;' because it was not a promise to pay the debt of another, but a debt of his own. And if the original signers, Jeremy and Samuel, had paid the note the next day after the defendant had signed it, they could, upon the evidence before us, maintain an action against the present defendant, and compel him to reimburse to them the amount so paid.

We are of opinion that the evidence which was rejected, ought to have been admitted — and accordingly the nonsuit must be set aside and the cause stand for trial.