Johnson v. Wilmarth

This was an action of assumpsit on the defendant’s promise to guaranty the payment of a promissory note of hand; and the first question to be considered is, whether there were a sufficient consideration for that promise.

It was proved at the trial, that the plaintiff threatened to commence a suit against the administrator of the estate of the maker of the note, and that thereupon, at the request of the plaintiff and the administrator, and to prevent the sacrifice of the real estate, (which was apprehended,) the defendant signed the guaranty. It was also proved, that before that time the administrator, who was the son of the maker of the note, had given a deed of all his interest in the real estate of his father, to the defendant.

Upon these facts, we are of opinion that there was a good and sufficient consideration for the guaranty. In the first *421place, it was given to prevent the sacrifice of the real estate in which the defendant had an interest; and this must be considered as a benefit to her. In the second place, the plaintiff’s forbearance to sue the administrator was a sufficient consideration ; it being a well settled principle that the forbearance to sue a present claim or debt is a good consideration for a promise. 1 Comyn on Contracts, (1st ed.) 13, 14.

It was objected that there was no agreement to forbear a suit on the note against the administrator, and that therefore there was no consideration for the defendant’s guaranty at the time it was given. But we think such an agreement may be inferred from the facts reported. But if it were otherwise, actual forbearance by the plaintiff to sue the administrator was proved, and is not denied; and it was proved that the guaranty was signed by the defendant for the express purpose of delaying the suit against the administrator, which the plaintiff threatened to commence before she signed the guaranty. We are therefore of opinion, from the facts reported, that there was a good consideration for the defendant’s guaranty. Breed v. Hillhouse, 7 Connect. 523. Walker v. Sherman, 11 Met. 170. Lent v. Padelford, 10 Mass. 230.

The remaining question to be decided is, whether the defendant has been discharged from her liability by the laches of the plaintiff. It is contended by the defendant, that as the plaintiff neglected to sue the administrator, until her claim against him was barred by the statute of limitations, (Rev. Sts. c. 66, § 3,) the defendant has thereby lost all claim against the estate of the deceased, in case a recovery should be had against her in this action. With regard to this objection, we are to consider that it was the understanding of the parties, at the time when the defendant undertook to guaranty the payment of the note, that the plaintiff was not to sue the administrator for an indefinite time, and that it was the intention of the administrator to sell the property some time in the spring after — a very short time before the action against the administrator was barred. These facts considered, we think the plaintiff was not bound to demand of the administrator *422payment of the note, or to notify the defendant of its nonpayment. But if it were otherwise, it does not appear that the defendant has suffered any damage by the omission. If by law she had any claim of indemnity from the estate of the deceased, it has not been defeated by the omission to sue the administrator; for, although the action against him is barred, the defendant will be entitled to indemnity against the heirs. Rev. Sts. e. 70, § 14. But if the administrator is responsible personally, as we think he is — as the defendant gave her guaranty at his request—there is no evidence to prove, or tending to prove, his insolvency, or inability to pay; so that in no respect has the defendant been prejudiced by the plaintiff ’s omission to notify her of the non-payment of the note.

New trial granted.