Moore v. McKenney

21 A. 749, 83 Me. 80, 1890 Me. LEXIS 15

• Court: Supreme Judicial Court of Maine
• Decided: September 30, 1890
• Status: Published

Opinion

Walton, J.

This is an action on a negotiable promissory note on the back of which the defendant, not being the payee, had written his name in blank, and over which the plaintiff's counsel, at or before the trial, wrote the words, "for value received I hereby guarantee the payment of the money above mentioned, to Ann J. Moore.”

No evidence being offered in defense, the only question is whether the plaintiff's evidence was sufficient to entitle her to a verdict.

We think it was. The note itself was sufficient to establish a prima facie case. Colburn v. Averill, 30 Maine, 310; Lowell v. Gage, 38 Maine, 35; Childs v. Wyman, 44 Maine, 433. And the oral evidence offered by the plaintiff in no way weakened her case. It merely substituted fact for presumption. It proved what tiie actual transaction was instead of leaving it to be inferred. The evidence showed that the defendant wrote his name on the back of the note declared on, intending thereby to guaranty its payment; that he did this in consideration of the plaintiff’s promise to forbear and give further time for the payment of the note; and that the plaintiff, in consideration of the defendant’s guaranty, did forbear and give further time, and as much time as could reasonably be required of her. True, the evidence failed to show that a definite time ivas agreed upon. But this was not necessary.

A promise to forbear and give further time for the payment of a debt, although no certain or definite time bo named, if followed by actual forbearance for a reasonable time, is a valid and sufficient consideration for a promise guarantying its payment. King v. Upton, 4 Maine, 387; Elton v. Johnson, 16 Conn. 253; Howe v. Taggart, 133 Mass. 284, and authorities there cited.

And in Lambert v. Clewley, 80 Maine, 480, (a case cited and relied upon by the defendant’s counsel,) the court did not hold otherwise. Nothing was decided in that case except that the alleged contract to forbear was not proved. The court did not decide that such a contract, if proved, would not be valid, unless a definite time of forbearance was agreed upon. In Smith v. Bibber, 82 Maine, 34, (also cited and relied upon by the defendant’s counsel,) the head note does so state; but the opinion of the court does not justify the statement. The word " definite ” was inadvertently inserted in the rescript announcing the decision of the court, and this rescript was adopted by the reporter for his head-note. But the error is corrected in the errata at the end of the volume, by stating that the word "definite” in the head-note should be erased.

It is undoubtedly true, as stated in the opinion of the court in the case last cited, that to constitute a legal contract to forbear, there must be a valid promise to do so, so that for some time the creditor will have no right to sue. But this result may be secured without the naming of any particular time. If the promise is in general terms, no particular time being named, the law implies that the forbearance shall be for a reasonable time. Such is the legal construction of such a promise. The authorities already cited so state. The debtor, therefore, by such a promise, does obtain aright, not only to some delay, but to a reasonable delay, such as under all the circumstances he is reasonably entitled to. We therefore repeat that, a promise to forbear, although for an indefinite time, if followed by actual forbearance for a reasonable time, is a valid and sufficient consideration for a joromise guarantying the payment •of a debt.

The uncontradicted evidence in this case clearly entitled the plaintiff to a verdict in her favor; and it is the opinion of the court that the jury were properly instructed to return such a verdict. Prevention is better than cure. And the court may properly instruct the jury to return a verdict for either party when it is plain that a contrary verdict can not be allowed to stand. Jewell v. Gagne, 82 Maine, 430, and cases there cited.

It is very clear that, upon the evidence reported, a verdict against the plaintiff could not be sustained. It was, therefore, the right of the plaintiff to have the jury instructed not to return such a verdict.

Exceptions overruled. °

Peters, C. J., Virgin, Libbey, Foster, Emery and Haskell, JJ., concurred.