On Rehearing.
Bean, J.This cause was originally submitted on briefs without an oral argument, and as the brief of appellant was confined largely to a discussion of the points passed upon in the opinion filed, the alleged error of the trial court in giving and refusing certain instructions, although assigned as error and noted in the brief, escaped our attention and was not considered.
The contention for appellant is, that although an agreement by plaintiff to forbear instituting proceedings to set aside the conveyance from F. Cecil to defendant, and an actual forbearance by it would be a good and sufficient consideration for the execution of the note by defendant, and that there was evidence from which the jury might find such an agreement, yet that question was not submitted to the jury, but the court instructed them in effect that mere forbearance by plaintiff without an agreement to forbear would be a sufficient ■ consideration for defendant’s promise.
*62The defendant requested the court to charge the jury that “the mere forbearance of plaintiff, if you should find that there was such forbearance, to attack a conveyance of property from F. Cecil to the defendant, without any agreement to forbear on the part of the plaintiff, would not be a sufficient consideration to sustain the contract in question, even though the plaintiff did forbear to attack such conveyance on account of the defendant having signed the note in question.” This was refused and the following given: “If you believe from the evidence that when the defendant signed the note sued upon he did so to induce the plaintiff not to attack the conveyance of property theretofore made by Frank Cecil to himself, then I charge you that there was a good and sufficient consideration for his so signing.”
From the instruction refused and the one given, it is apparent the theory of the trial court was that an agreement on the part of plaintiff to forbear to attack the conveyance from Frank Cecil to defendant was not necessary to support the defendant’s promise, but if the note was signed by defendant to induce plaintiff to so forbear, it was a sufficient consideration. This was manifest error. An agreement by a creditor to forbear prosecuting his claim, and an actual forbearance by him, is a good consideration to sustain a promise of a third person to pay the claim: Robinson v. Gould, 11 Cush. 55; Bish. Contr. § 63; but a mere forbearance without such a promise is not. “A mere forbearance to sue,” says Bigelow, J., “without any promise or agreement to that effect by the holder of a note, forms no sufficient consideration for a guaranty. It is a mere omission on the part of the creditor to exercise his legal right to which he is not bound by any promise, and which he may at any moment and at his own pleasure enforce.” — Mecorney v. Stanley, 8 Cush. 87; and this is so although the act of forbearance was induced by the defendant’s promise: Manter v. Churchill, 127 Mass. 31. An agreement to forbear may be inferred by the jury from the fact of forbearance and *63the circumstances under which it was exercised, and as we have already held, there was sufficient evidence in this case to go to the jury on that question; but whether there was such an agreement on the part of the plaintiff, either express or implied, ought to have been submitted to the jury.
It was argued for the plaintiff that the note itself imports a consideration, and in the absence of any evidence on the part of the defendant showing a want of consideration, the plaintiff was entitled to a verdict, and the error of the court in instructing the jury did not prejudice the defendant. But as the defendant did not partake in the original consideration of the note by becoming a party to it at its inception, the plaintiff, in order to recover against him, was bound to show a valid consideration for his promise ; otherwise it was nudum pactum and void. Without a new and independent consideration, the legal effect of his signing the note was that he became a party to an old note which had long been made and delivered to the payee as a completed contract on a consideration wholly past and executed, and moving solely between the original makers and the plaintiff, and not to a new contract on a new and additional consideration as between the payee and himself. The words “for value received” gain no new or additional meaning by the defendant’s signature and import no other or further consideration than that which they sig nified when the note was given; and without some proof of a new consideration, plaintiff cannot recover, because the complaint avers that the note was not signed by defendant until long after it was delivered to the plaintiff by the original promissors: Green v. Sheppard, 5 Allen, 589.
It follows therefore that the judgment must be reversed and a new trial ordered.