I agree with Mr. Justice Hatch as to the legal rules applicable to the determination of this question, but dissent from his conclusion that the language of the instrument of guaranty gives rise to the inference that the consideration for its execution was an agreement to forbear the enforcement of the notes for a reasonable time. In the first place, there was no proof of such an agreement. When this guaranty was given the notes were due and the plaintiff could have proceeded against those liable upon them to collect the amount due. Himmelrich, to whom the letter guaranteeing the payments of the notes was written, was the president of the plaintiff, and it seems to have been the object of the defendant’s intestate to protect him from blame, because he, as president of the bank, had discounted these notes. There had been an understanding between Leary, the defendant’s intestate, and Himmelrich that each was to pay one-half of these notes to the bank, but I can find no evidence to justify a finding that there was any agreement between the plaintiff and either Leary or Himmelrich to suspend the right to enforce these notes, or that the plaintiff did suspend the collection of the notes upon this promise. By this instrument of guaranty Leary agreed that he would be responsible for the debt of another which was then due and payable to the plaintiff. There was no proposal in the letter of guaranty that the bank should suspend the collection of the notes which were accepted by the bank; nothing but the naked promise to pay the notes within a reasonable time, and if there is any force in the rule, which I understand is conceded to be established in this State, that an instrument of guaranty must contain, either expressly or inferentially, a consideration, it seems to me that this instrument fails to comply with the statute and is void.
I think the judgment should be affirmed.
Judgment reversed, new trial ordered, costs to appellant to abide event.