The declaration filed by the plaintiffs in this case against the defendants was demurred to (1) upon the ground that it did not set out fully and specifically the 'breach of the contract sued on, nor the items nor amounts of damages resulting therefrom; (2) because the writing sued on showed on its face that there was no consideration of value for the promise of J. C. Wofford, who was, as appeared from said paper, a mere surety, and such writing showed that the promisee therein had already, before obtaining said Wofford’s promise, paid off and had assigned to him the fi. fas. against W. T. Wofford; and also showed that said promise did not bind the plaintiff to forbear the enforcement of defendant’s fi. fas.; and (3) because no sufficient cause of action was set out in the declaration.
The court sustained the demurrer and dismissed the action, and the question here is, was that ruling right. We do not think that any ground of the demurrer was good; when the amendment was allowed (without objection), the declaration did show a breach of the contract and the damages resulting therefrom. And we think furthermore that it showed a consideration for the promise of the surety. While it is true that the promise was to pay more than the uniform legal rate of interest, yet the conventional rate of interest at the time the promise was made was 12 per cent., which was legal. We think this a valid contract and bound both principal and surety to pay the amount therein specified; and the demurrer should have been overruled.
Judgment reversed.