Smith v. Finch

3 Ill. 321

• Court: Illinois Supreme Court
• Decided: June 15, 1840
• Status: Published

Opinion

Smith, Justice,

delivered the opinion of the Court :

We can perceive no sufficient grounds for reversing the judgment in this case.

The endorsement of the note, and the parol guarantee to pay it to Finch, in case it could not be collected off of the maker, is clearly established by evidence ; and the inability to collect the amount from the maker of the note, is shown by the record of the judgment, and the execution with the sheriff’s return.

This evidence is also fortified by the testimony of Willard, the maker, whose evidence was admitted without objection, and who deposed, that he had assigned his property to pay his debts, on the 24th of March, 1838. The rule in reference to the liability of the assignor of a promissory note, under the statute, is not applicable in this case. The defendant chose to accompany his endorsement with a special guarantee, and by that he must abide.

It would have been competent for the plaintiff to have filled up the endorsement, in the terms of the guarantee, in writing on the note, and thus made the terms explicit.

(1)

Its resting in parol will not alter the right to recover. A parol promise, collateral to a written agreement, is binding. (2)

It has been objected, that there was no consideration to support the promise in this case. This is not so. The original consideration of indebtedness to Finch, was a valid one to support the promise, which falls within the rule, that when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm, between the newly contracting parties, the consideration is sufficient. (3)

The judgment is affirmed, with costs.

Judgment affirmed.

Nelson v. Dubois, 8 Johns. 375 ; Campbell v. Butler, Ibid. 345.

4 East 29.

8 Johns. 39.