Stroud v. Thomas

SHAW, J.

This is an action upon a promissory note executed by all the defendants. The defendant Mangrum

[275]

answered separately, admitting the execution of the note, and alleging as his defense that he executed the same as a surety only and without other consideration; that he signed the same after it had been signed and delivered by the principal debtors; and that afterwards, and without his knowledge or consent, the plaintiff, for a valuable consideration, extended the time of payment of the note, and that thereby he was discharged. The court made its findings, and rendered judgment in favor of the plaintiff.

The defendant Mangrum thereupon moved for a new trial, which motion the court denied. The appeal is taken by the defendant Mangrum from the judgment and from the order denying his motion for a new trial.

It is contended by the appellant that he is not bound as surety on the note, for the reason that he executed it after it had been exe'eúted by the principal debtors, and that there was no additional consideration for his becoming surety thereon. If this contention were well founded, it would be a good defense to an action "against him upon the note.

(Leverone

v.

Hildreth,

80 Cal. 139;

Jackson

v.

Jackson,

7 Ala. 791; 3 Kent’s Commentaries, 122.) But the court finds, and the finding is sustained by the evidence, that the execution of the note by Mangrum was procured in pursuance of an agreement with the principal debtors, whereby they agreed with the plaintiff that they would procure Mangrum to sign the note as security, provided plaintiff would accept the note in satisfaction of a pre-existing debt. This takes the ease out of the rule contended for. The execution by Mangrum, being in pursuance of the original agreement, relates back to and takes effect the same as if it had been coincident with the execution by the principal debtors.