In November, 1892, one Emma Shine loaned to Solomon Mathias three thousand dollars, taking from him a note for that amount, secured by a chattel mortgage upon a stock of goods, and, as further security, the promissory note of the defendant for five hundred dollars, payable to Mathias and by him indorsed.
As between the defendant, the maker of this note, and Mathias, the payee, there was no consideration, it was given for the accommodation of Mathias, but it was indorsed by the payee and delivered to Mrs. Shine before its maturity, and as collateral security for a debt created contemporaneously with such indorsement and delivery.
At the maturity of this note it was renewed by another of like tenor, given by the defendant, payable to Mathias and taken by Mrs. Shine in the place of the first note. Again, upon the maturity of the second note, a third, the one in suit, was given under like circumstances. Both of the last two notes were delivered to Mrs. Shine, and each was taken by her in the place of the preceding one, but neither of these two was indorsed by Mathias, and there was no consideration for either as between the maker and the payee.
The plaintiff, as executrix of the payee, brings this suit upon the last of the three notes for the benefit of Emma Shine, the owner and holder thereof.
The only question presented by the exceptions is whether, under these circumstances, the defendant can avail himself of the fact that the note was wholly without consideration, as between the maker and the payee, and was given for the accom*526modation of the latter. The judge who tried the case without the intervention of the jury, ruled as a matter of law, "that the note in suit not being indorsed by Mathias, and being without consideration, the defendant can set it up in defense of this suit.”
The defendant’s counsel relies upon the well-settled principle that the assignment and delivery of a negotiable promissory note before maturity, without the indorsement of the payee, gives to the assignee only the rights of the payee. Haskell v. Mitchell, 53 Maine, 468; Allum v. Perry, 68 Maine, 232.
This contention would unquestionably be correct if it were not for the transactions between the parties, previous to the giving of the note in suit. But we think that the rights of the parties were established by the first note, which the plaintiff in interest took at the time of the creation of the indebtedness from Mathias to her. The subsequent notes were mere renewals, extensions of credit. Before she surrendered the first note, she held a Adalid obligation of the defendant which she might have enforced at any time after maturity. Each of the subsequent notes was given by the defendant and taken by the plaintiff’ in interest for the purpose of replacing the prior note. It was merely a substitution of a new note for one that had matured. As between the defendant and the person for whose benefit the action is brought, there was a good and sufficient consideration for the last two notes. The note first given being valid and enforceable in her hands, the surrender of that note was a good consideration for the second, and this is equally true as to the substitution of the note in suit for the second. Dockray v. Dunn, 37 Maine, 442; Dunn v. Weston, 71 Maine, 270.
We think, therefore, that the ruling excepted to was incorrect, and that it Avas not competent for the defendant to show that as betAveen him and the payee, there was no consideration.
Exceptions sustained.