Ebenezer Rix v. David Adams & George Throop, 9 Vt. 233

The opinion of the court was delivered by Redfield, J. If the contract, alleged in the declaration, is founded upon any consideration, it must be the original undertaking of Adams, as principal, in the debt to Downer, or the “ keeping plaintiff easy,” in his relation of surety to Downer. The latter consideration is one, in its terms, of rather novel impression ; but in fact, it is synonymous with forbearance. The contract, then, is substantially that of defendants, jointly guarantying plaintiff’s immunity on his liability to Downer. There is no pretence of any consideration moving between Throop and Rix.

Throop is the surety of Adams in the last contract. And the consideration between the principal debtor and the creditor is that, which makes the obligation of the surety, in any case, binding. But what is the consideration of this new contract, as between Adams and Rix ? Rix had, long before this, assumed the obligation of surety, and without any expectation of this, or any other special indemnity. Had the contract been made in pursuance of a contract entered into at the time oí plaintiff’s becoming surety for Adams to Downer, it would be considered a part of that contract, and upon sufficient consideration.

Knapp v. Parker, 6 Vt. Rep. 642. But that is not this case. There was nothing, then, in Adams’ original contract with plaintiff, which looked towards the present contract, or will support it. This does not seem to be relied upon by the plaintiff. His declaration is not formed with reference to any such consideration. In relation to the consideration of iorbearance, w'e can well suppose a case, where the consideration is sufficient to support a new and independent, contract of indemnity, of the character now contended for.

If there had been an undertaking, on the part of Downer, upon sufficient consideration, to wait a definite time on the original debt, and the plaintiff had promised to stand surety, during that term, and this contract, now in suit, had been made to induce the forbearance, the defendants would no doubt be liable upon their contract. But such is not the contract alleged. The undertaking of Adams, so far as his previous obligation is concerned, is like one guarantying the payment of his own debt, and is never the foundation of a new promise, unless the original liability is merged and lost in the new contract.

If it is pretended Adams assumed a new and different liability from that, which before existed, then it was a mere naked, promise, founded upon no sufficient consideration. It was, in either case, founded upon a past and executed consideration, and, as such, void. It is very similar to the case of Harding v. Craigie, 8 Vt. Rep. 501. Plaintiff had not become Adams’ surety at Throop’s request, or for his benefit. There is no benefit accruing to defendant, for this new promise, and no injury to plaintiff.

He did not undertake to stand surety for Adams, for any defi nite time, and a promise to remain surety an indefinite time, to be determined at his o\vn option, was as no promise, for he was already surety on those identical terms. The contract being in writing does not vary the case. It obviates the statute of frauds, but will -not dispense with the necessity of a sufficient consideration. The undertaking “of one man for the debt, default, and miscarriage of another,” must not only be in writing, but upon some sufficient consideration. The declaration is insufficient, and the Judgment below must be affirmed.