(dissenting): I agree with the court below that, upon the whole evidence, it -appeared that there was no consideration for the promise of the respondent to pay to the plaintiffs the amount of the promissory note sued on. The obligation being in form a joint promissory note, there was a presumption of consideration, but as between the original parties the existence of a consideration was a question of fact. The respondent alleged as a defense that there was no con- > sideration of a promise, and upon" the conceded facts I think the absence of consideration was established. The only claim of a consideration was the agreement by the plaintiffs to forbear the enforcement of a claim against the respondent’s husband. It is conceded that tlie respondent, received nothing from the plaintiffs for the note and that the plaintiffs parted with nothing upon the faith' of the note, unless it was the right to enforce their demand against the respondent’s, husband. I can find no evidence in the record to show that there was any existing indebtedness.of the respondent’s husband to the plaintiffs at the time of the execution of the noté. There was evidence on behalf "of the plaintiffs' that their agent claimed an *407indebtedness of $40,000; and the evidence on behalf of the defendants is that the claim was for a much smaller amount. But to •establish a consideration, I think it must appear that there was an existing indebtedness, and that by accepting the note the plaintiffs ■ undertook not to enforce that indebtedness until the note became ■due. Proof that there was a claim of an indebtedness, without evidence of an actual existing indebtedness, is not, I think, sufficient.
I, therefore, dissent.
Judgment reversed, new trial ordered, costs to appellants to abide ■event.