Moore v. McKenney

• Decision Date: 30 September 1890
• Parties: MOORE v. MCKENNEY.
• Court: Maine Supreme Court

21 A. 749

83 Me. 80

MOORE

v. MCKENNEY.

Supreme Judicial Court of Maine.

Sept. 30, 1890.

(Official.)

Exceptions from supreme judicial court, Androscoggin county.

This was an action of assumpsit, brought against the defendant as guarantor of the payment of a certain promissory note.

Writ dated January 1, 1889.

Declaration: "In a plea of the case, for that, whereas Isaac A. Johnson and Charles E. Johnson, on the 1st day of January, 1885, at said Auburn, was indebted to the plaintiff in the sum of one hundred dollars, with interest therefor, according to the note of the said Isaac A. and Charles E. Johnson, under their hands, given to the plaintiff long before, to-wit, on the 12th day of August, 1880, and, being so indebted, the plaintiff was about to sue the said Isaac A. and Charles E. Johnson for the recovery of said sum, with the interest thereon due; and the said McKenney, the defendant, on said 1st day of January, 1885, at said Auburn, in consideration that the plaintiff would then and there, at the special request of the said McKenney, forbear to sue the said Isaac A. and Charles E. Johnson, for the purpose and cause aforesaid promised the plaintiff to pay her the said sum of money and the interest thereon due, owing to the plaintiff, as aforsaid, by the said Isaac A. and Charles E. Johnson; and the plaintiff avers that, confiding in the said promise of the said McKenney, she hath hitherto foreborne to sue the said Isaac A. and Charles E. Johnson, and never commenced an action against the said Isaac A. and Charles E. Johnson, in this behalf; and, although a reasonable time for the payment of the said sum of money and interest so owing by the said Isaac A. and Charles E. Johnson hath long since elapsed, yet the said McKenney, though requested, has never paid the same, but wholly neglects and refuses so to do; and the said sum of money and interest so owing from the said Isaac A. and Charles E. Johnson, as aforesaid, is still unpaid and in arrears to the plaintiff.

"Also, for that Isaac A. Johnson and Charles E. Johnson, on the 12th day of August, 1880, at said Auburn, by their promissory note in writing, under their hands, of that date, for value received, jointly and severally promised the plaintiff to pay her or her order one hundred dollars on demand, with interest at seven per cent. per annum until paid; and the said McKenney, the defendant, there afterwards, on the 1st day of January, 1885, by his writing under his hand, on the face of said note, for value received, then and there promised the plaintiff to guaranty to her the payment of the contents of said note, agreeably to the tenor of the same; and the said sum of money and interest so owing from the said Isaac A. and Charles E. Johnson, as aforesaid, is still unpaid and in arrears to the plaintiff.

"Also, for that Isaac A. Johnson and Charles E. Johnson, on the 12th day of August, 1880, at said Auburn, by their promissory note in writing, under their hands, of that date, for value received, jointly and severally promised the plaintiff to pay her or her order one hundred dollars on demand, with interest at seven per cent. per annum until paid; and the said McKenney, the defendant, there afterwards, on the 1st day of January, 1885, by his writing under his hand, on the face of said note, in consideration that the plaintiff would forbear the said Isaac A. and Charles E. Johnson, and give them further time for the payment of said note and interest, then and there promised the plaintiff to guaranty to her the payment of the contents of said note agreeably to the tenor of the same; and the plaintiff avers that, confiding in the promise of the said McKenney, she hath hitherto fore-borne to sue the said Isaac A. and Charles E. Johnson, and never commenced an action against them in this behalf; and, although a reasonable time for the payment of the said sum of money and interest hath long since elapsed, yet the said McKenney, though requested, has never paid the same, but wholly neglects and refuses so to do; and the said sum of money and interest so owing from the said Isaac A. and Charles E. Johnson, as aforesaid, is still unpaid and in arrears to the plaintiff. "

Money count: "In support of the above count the plaintiff will claim to prove that Isaac A. Johnson and Charles E. Johnson, on the 12th day of August, 1880, at said Auburn, by their promissory note in writing, under their hands, of that date, for value received, jointly and severally promised the plaintiff to pay her or her order one hundred dollars on demand, with interest at seven per cent. per annum until paid; and the plaintiff avers that there afterwards, on the 1st day of January, 1885, she went with the said note to the said Isaac A. and Charles E. Johnson, and demanded payment thereof, which was refused, and that further time was asked by the said Isaac A. and Charles E. Johnson in which they might make payment of said note, and the interest due thereon; and she avers that she was unwilling to extend the time of payment thereof, and was about to bring suit on the same; and the said McKenney, on said day of January, 1885, at said Auburn, in consideration that the plaintiff would then and there, at the special request of the said McKenney, forbear to sue the said Isaac A. and Charles E. Johnson for the purpose and cause aforesaid, and give them further time for the payment of said note and interest, then and there promised the plaintiff to guaranty to her the payment of the contents of said note, agreeably to the contents of the same; and the plaintiff avers that, confiding in the promise of the said...