STOUDENMIRE vs. WARE

STOUDENMIRE vs. WARE. [ACTION ON EROMISSOBY NOTE.] 1. Promissory note; when withovi consideration, — A promissory note given for the debt of another, on the assurance of the payee that the agent of the debtor will pay it on request, but without the knowledge or assent of such debtor or his agent, is without consideration, notwithstanding the note is made payable some time after the transaction, and the claim against the debtor is receipted and delivered to the maker. Appeal from the Circuit Court of Perry, Tried before Hon. M. J. Saeeold. The suit was on a promissory note made by the appellant in favor of H. H. Ware & Co., and by them indorsed to the appellee’s intestate, who was one of the firm of Ware & Co. John H. Stone was indebted to Ware & Co. on an open account, for merchandise sold to him. H. H. Ware induced the appellant, who was under no obligation to do so, to give the note for Stone’s indebtedness, by assuring him that Stone’s agent would pay the debt on request. This agent afterwards delivered to the appellant certain property to indemnify him against other liabilities of Stone for which he was surety, but not against this. None of it had been applied to the payment of any portion of this debt, and it was not sufficient therefor, after satisfying the other obligations. The agent, on the appellant’s application for payment of the debt for which he had given his note, promised to pay Ware & Co., but he had not done so. The account against Stone was receipted and given to the appellant at the time he made his note. The note was dated May 2, 1861, and was payable on the first of January afterwards. There was no evidence that Stone or his agent knew of the transaction between the appellant and Ware & Co. at the time. The court charged, that under the evidence the verdict must be for the plaintiff, and refused to charge that it should be for the defendant. The charge given, and the refusal to charge as requested, are now assigned as error. John C. Reid, for appellant. Fellows & Johns, contra. [MAJORITY — B. F. SAFFOLD, J.] B. F. SAFFOLD, J. Under the evidence disclosed in the bill of exceptions, the note, the foundation of the action, was without consideration.—Williams v. Sims, 22 Ala. 512; Beall & Co. v. Ridgway, 18 Ala. 117. The court below, therefore, erred in the charge given, and in its refusal to charge as requested. The judgment is reversed, and the cause remanded.