Whelan v. Swain

COOPER,C.

—Plaintiff recovered judgment on a promissory note. This is an appeal from the judgment and from an order denying appellant’s motion for a new trial. The principal contention of appellant is, that the finding that the promissory note was signed by her for a sufficient consideration is not supported by the evidence. The facts in connection with the matter are substantially as follows: In 1889 the defendant L. H. Swain and her husband borrowed four hundred dollars from the plaintiff’s assignor. In March, 1895, the husband died, leaving the note unpaid, and leaving surviving him his widow, L. H. Swain, defendant, and his daughter, the appellant. Prior to his death he deeded all his property to his wife to avoid probate proceedings, trusting to her to care for the daughter, who was to receive all the property upon the mother’s death. Soon after the husband’s death, the note was returned to the widow, and a new note signed by her alone, taken for a like sum. After the execution of the second note, the widow, by deed, transferred all the property to the daughter. About the 1st of July, 1897, the widow was having trouble with her creditors. Plaintiff’s assignor had requested and appellant had offered to sign a joint note with her mother and take up the old one, in order to satisfy the plaintiff’s assignor and to prevent an attempt being made 'to collect at that time. Accordingly, on July 18, 1897, the old note was delivered up

[391]

and the joint note of the mother and daughter given in lieu thereof. This note was payable one day after date and was for four hundred dollars, the original sum.

On April 25, 1898, the mother filed her petition in insolvency, and was duly adjudged insolvent, and proceedings against her stayed. The note has not been paid, and the only claim made by appellant is,' that she signed the note without consideration. We think there was a sufficient consideration for appellant’s signature. The old note was surrendered. The appellant had received the property that belonged to the father and mother when their note was outstanding, and that belonged to the mother alone when her note was outstanding. The new note was payable one day after date, and there was a forbearance implied for at least the one day. If there was a consideration, the law will not attempt to measure the amount thereof.