Howe v. Taggart

133 Mass. 284, 1882 Mass. LEXIS 210

• Court: Massachusetts Supreme Judicial Court
• Decided: September 7, 1882
• Status: Published

Opinion

Field, J.

The defendant cannot complain that his demurrer to the third count was sustained. He does complain that “ the judge refused to entertain the demurrer as to the residue of the declaration, the same having been already answered to on the merits.” It appears that the defendant, after he had filed an answer to the first two counts of the declaration, on the plaintiff’s filing a third count, filed, by leave of court and the consent of the plaintiff, an answer containing a demurrer to the whole declaration. The plaintiff gave his consent, supposing that it was an answer to the third count only, and it does not appear that the court understood that it was an answer and a demurrer to all the three counts when it gave leave to file it. The order of the presiding justice confining the demurrer to the third count was within his discretion.

The trial proceeded on the first and second counts and the original answer thereto, and the case was submitted to the jury on the first count only. It does not appear to have been contended by the plaintiff that the conveyance of the land by Taggart to Taggart, Jr. was the consideration of the promise of Taggart, Jr. to the plaintiff. Apparently, this conveyance was made April 1, 1878, and Taggart, Jr. signed the note in July following. The consideration relied on was the promise of the plaintiff, that, if Taggart, Jr. would sign the note, “it might remain,” or, in other words, the promise of the plaintiff that he would forbear suing Taggart.

' It seems to have been assumed in this Commonwealth that an agreement to forbear bringing suit for a debt due, even although for an indefinite time, and even although it cannot be construed to be an agreement for perpetual forbearance, if followed by actual forbearance for a reasonable time, is a good consideration for a promise. Prouty v. Wilson, 123 Mass. 297. Robinson v. Gould, 11 Cush. 55. Boyd v. Frieze, 5 Gray, 553. Ellis v. Clark, 110 Mass. 389. Pratt v. Sedden, 121 Mass. 116. Mecorney v. Stanley, 8 Cush. 85. Manter v. Churchill, 127 . See also Coles v. Pack, L. R. 5 C. P. 65; Oldershaw v. King, 2 H. & N. 517.

The jury returned a verdict for the plaintiff on the first count. This was a count on a promissory note, in which it was alleged that both defendants made the note, a copy of which was annexed, and which purported to be signed by both defendants, and dated April 1, 1871. It was a copy of the note which Taggart gave April 1, 1871, and which Taggart, Jr. signed in July 1878. To support this count, it was necessary to prove that, after Taggart, Jr. signed the note, it was delivered to the plaintiff, on a good consideration, as a new original contract of both defendants. No evidence appears that would warrant any such finding. The whole evidence recited in the exceptions shows that all parties intended and understood that Taggart was to continue liable on the note, according to the obligation he entered into when he gave it on April 1, 1871; and that the obligation assumed by Taggart, Jr. when he signed it in July 1878 was additional and collateral to this obligation of Taggart. There was no evidence, so far as appears, that this original obligation of Taggart on the note was destroyed, and, while that remained, Taggart, Jr. could not become a joint and several promisor with him by signing the note, although he signed it for a distinct consideration sufficient to support his contract. Stone v. White, 8 Gray, 589.

The instructions given by the presiding justice did not discriminate with sufficient care between becoming a party to a contract already subsisting, and executing with another person a new contract, and apparently were not adapted to the evidence. ' Exceptions sustained.