It was fairly left to the jury to determine whether or not the plaintiff took the order on Todd & Co., merely to collect it, as the agent of the defendants, and for their accommodation, for the court instructed the jury on behalf of the plaintiff, if they believed, from the evidence, that he took the order on account of indebtedness due him from defendants, and to allow them credit for it in case of collection, and acted in accordance with their views, or as. their agent, in reference to its collection, and they, with full knowledge of what had been done, promised to pay the balance due on the same, the promise would be binding on defendants, and authorize a recovery thereon by the plaintiff.
This instruction placed the case in the strongest attitude before the jury for the plaintiff, but they have found no such facts to exist. They have found that the order was received as negotiable paper, and subject to all its conditions.
The court, however, on behalf of the defendants, instructed the jury, that the plaintiff could not recover on account of any express promise of defendants to pay the order, unless they found such promise to have been made for a good and valuable consideration.
This instruction, we think, was wrong. It assumes that the plaintiff had made such an agreement with Todd & Co. as discharged the defendants, whereas, that question should have been left to the jury under proper instructions on the facts brought out, as to the nature of the agreement; for unless the defendants were discharged by an agreement with Todd & Co., no new consideration was necessary to make their alleged promise to pay the order binding on them. Their indebtedness, for which the order on Todd & Co. was given, would be a sufficient consideration. Nor would proof df a new consideration be necessary, if defendants knew of the arrangement with Todd & Co., and its terms, by which they were discharged, and afterwards, with such knowledge, promised to pay.
This, we think, is the .position the parties should have occupied under the authorities. The case of Tebbetts v. Dowd, 23 Wendall, 379, is in principle, like this, on this point.
The judgment is reversed, and the cause remanded for further proceedings consistent with this opinion.
Judgment reversed.