King v. Upton

• Decision Date: 01 June 1826
• Citation: 4 Me. 387
• Parties: KING v. UPTON
• Court: Maine Supreme Court

4 Me. 387

KING v. UPTON

Supreme Judicial Court of Maine, Washington

June, 1826

ASSUMPSIT, against the defendant as guarantor of the payment of a promissory note, dated March 8, 1820, made by one Jeduthun Upton, and payable to the plaintiff on demand. The undertaking of the defendant was contained in the following memorandum written on the back of the note:--" Boston Dec. 2, 1820. I hereby guarantee the payment of the within note, John Upton." The declaration stated, as a consideration for this undertaking, a promise on the part of the plaintiff " to forbear and give further time for the payment of said note; " and the plaintiff averred that he accordingly did forbear and give further time for the payment of the note, from Dec. 2, 1820, till Feb. 15, 1822.

At the trial before the Chief Justice, at the last June term, the plaintiff offered the deposition of Joseph King; to the admission of which the defendant objected, on the ground that the deponent was interested in the event of the suit; and was about to prove this interest by other witnesses. But on inspection of the deposition, it appeared that the defendant had interrogated the deponent himself as to this point, and that the latter had denied that he was interested in the event of the suit. The Chief Justice thereupon overruled the objection, and admitted the deposition. The defendant also objected to the admission of parol proof to shew on what consideration the undertaking was founded. But this objection also was overruled; and a verdict was taken for the plaintiff, subject to the opinion of the court upon these two points.

The defendant also moved in arrest of judgment; --because the only consideration alleged for his engagement, was a promise by the plaintiff that a longer time of payment of the note should be given, without saying what time.

McGaw for the defendant, as to the admissibility of direct proof of the interest of the deponent, cited 14 Mass. 206. 15 Mass 378. 1 Phil. Ev. 96, 290. To support the position that parol evidence of the consideration of the promise to pay the debt of another was not admissible, and that the consideration should be expressed in the writing itself, he relied on Wain v. Warlters 5 East 49.--And upon the motion in arrest of judgment, he contended that the consideration alleged was altogether void for uncertainty.

Deane, for the plaintiff, relied on the standing rule of practice, to allow the party but one of the modes of shewing the interest of a witness, at his election. As to the objection that the consideration should have been expressed in writing, however the rule in England might be, he considered it settled here against the defendant, in Packard v. Richardson 17 Mass. 122. To the motion in arrest, he cited 1 Com. on Contr. 420. 3 Burr. 1886. 10 Mass. 316.

OPINION

MELLEN, C. J.

This case presents one question arising on a motion in arrest of judgment; and two arising on a motion for a new trial, founded on the report of the judge.

In support of the first motion, it is contended that the declaration does not disclose a sufficient consideration for the defendant's promise; the alleged consideration...