Lambert v. Clewley
Josiah G. Lambert v. Robert P. Clewley
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Opinion of the Court
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Daneorth, J.
The case shows that defendant put his name in blank upon the back of a note after it had been signed and delivered by the makers to the plaintiff’ as payee, as a completed contract. In this state of facts the burden of proof is upon the plaintiff to show some consideration to make valid any contract *482 arising therefrom. The presiding justice instructed the jury that "the evidence failed to show, and would not authorize them in finding, a valid consideration, . . so as to make it obligatory upon the defendant to pay the note.” The only consideration claimed was a forbearance on the part of the plaintiff to sue one of the makers. But a mere forbearance is not sufficient, even though produced by such signing. There must be a distinct and valid contract binding upon the plaintiff not to sue. Manter v. Churchill, 127 Mass. 31 .
The defendant testifies positively that there was no such agreement. The plaintiff testifies that the consideration of the indorsement was "that I would not sue.” "Pie said if I would not enter my suit, or make any trouble about it, he would see the note was paid,” and again, " When Mr. Clewley indorsed the note, it was the understanding that I was not to trouble Mr. Couseus. I was not to commence a suit.”
Remembering that a chain has only the strength of its weakest link, it would seem that these different statements were equally consistent with a mere forbearance, as with an agreement not to sue, and if we also consider that these statements come from a party who must have known the facts, the conclusion is inevitable that the jury would not have been justified in finding a valid consideration for the indorsement. There is an entire want of testimony as to time, and hence nothing to show that there was a single hour when the plaintiff might not have commenced an action without a violation of any legal obligation he was under to the defendant.
The instruction that if the note in suit was given solely as a renewal of the supposed obligation it would fall under the same principle, was a necessary sequence.
The instructions given under the state of facts arising in connection with the surrender of the old note, are unexceptionable. If there were any omission, advantage could be taken of it only by the proper requests for further instructions.
Exceptions overruled. Judgment on the verdict.
Peters, C. J., Libbey, Emery, Foster and Haskell, JJ., concurred.
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