There are many expressions in statutes and opinions to the effect that bonds are now generally treated as negotiable instruments, but many of these statements have reference to the abolition of the old distinction between sealed and unsealed instruments. In Comstock v. Breed, 12 Cal. 288, it was declared that the old unmeaning distinction between sealed and unsealed instruments had been determined by statute and that it was "the design of the legislature to place bonds and notes on the same footing in respect to defenses." It is true that the old common law rule with reference to assignability of things in action has long since been abrogated and has been succeeded by one more liberal which, while it permits securities to pass from hand to hand in business transactions does not make them negotiable to the extent of cutting off the equities of their makers.
The case was nothing more than an application of the familiar principle that where a debt has been already created the entering into an obligation to pay the same by a third person as surety, after the creation of the debt, and without any new consideration, such as delay or extension of time, it is not a binding obligation upon the surety. (Comstock v. Breed, 12 Cal. 288. ) In Wright v. Byrne, 129 Cal. 617, a succeeding guardian gave her note in renewal of the existing note of a former guardian, apparently upon the mistaken idea that it was her duty to do so, and without any new consideration or the cancellation of the old debt. Upon the principle above stated, it was properly held that there was no consideration.
Byrne received nothing, and plaintiff parted with nothing to induce Byrne to execute the note. So far, then, as defendant Byrne is concerned, certainly the finding that she did not make the note for a valuable or any consideration was supported by the evidence, and is decisive of the case as to her. (Comstock v. Breed, 12 Cal. 286; Leverone v. Hildreth, 80 Cal. 139; Chaffee v. Browne, 109 Cal. 211.) As to plaintiff's right of action against defendant Hinckley, it is clear that recovery must be had, if at all, on the theory that she is liable on the note in suit.
E.H. Lamme, and E.E. Millikin, for Appellant. A supplemental contract imposing onerous burdens upon one party must be supporter by a consideration. (McCarty v. Hampton Bldg.Assn., 61 Iowa, 287; Ayres v. Chicago etc. R.R. Co., 52 Iowa, 478; Feterman v. Parker, 10 Ired, 474; Sweringen v. Hartford Ins.Co., 52 S.C. 309; Geer v. Archer, 2 Barb. 420; Smith v. Ware, 13 Johns. 257; Vanderbilt v. Schreyer, 91 N.Y. 392; Reynolds v.Nugent, 25 Ind. 328; Coleman v. Applegarth, 68 Md. 21; Heim v.Butin, 109 Cal. 500; Comstock v. Breed, 12 Cal. 286; Brooks v.Johnson, 122 Cal. 569.) A party to an executory contract may stop performance by an explicit direction, and thereby subject himself only to damages for its breach.
COUNSEL: The mortgage, having been made for the accommodation of the husband to secure his antecedent indebtedness, and there being no new consideration therefor, is without consideration. (Civ. Code, secs. 2792, 2831, 2844; Jones on Mortgages, secs. 458, 615; Comstock v. Breed , 12 Cal. 288; Leverone v. Hildreth , 80 Cal. 139.) Partial failure of consideration is a defense pro tanto. (2 Jones on Mortgages, sec. 1490; 6 Wait's Actions and Defenses, sec. 4, p. 577; 2 Parsons on Contracts, 462 et seq.; 2 Pomeroy's Equity Jurisprudence, sec. 925 et seq.; Braly v. Henry , 71 Cal. 481; 60 Am. Rep. 543; 6 Wait's Actions and Defenses, sec. 5, p. 580, and authorities there cited.)
(1 Chitty on Pleading, p. 293; Curley v. Dean , 4 Conn. 265; 10 Am. Dec. 140; Douglass v. Davie, 2 McCord, 218; Goddard v. Fulton , 21 Cal. 437.) The complaint is uncertain, because it does not show whether there is any mutuality rendering the alleged promise of the defendant binding upon it. (Comstock v. Breed , 12 Cal. 288.) It is also uncertain, because it fails to show whether, according to the maturity table of the company, a cause of action had accrued.
(See Civ. Code, secs. 1667, 1698, 1971, 3395; Story on Equity Jurisprudence, sec. 1217.) The agreement for the waiver of the lien was without consideration. (Los Angeles etc. R'y Co. v. Rumpp , 94 Cal. 432; Civ. Code, secs. 1550, 1605, 1606; Comstock v. Breed , 12 Cal. 286; Liening v. Gould , 13 Cal. 598; Story on Contracts, sec. 855.) As there was no writing, no consideration for the claimed release can be implied.
4 Vt. 144; Tomlinson v. Smith, 2 Iowa 39; Shealy v. Toole , 54 Vt. 478; Young v. Hill , 67 N.Y. 170; 23 Am. Rep. 99; Williams v. Hathaway, 19 Pick. 387; Dodge v. Adams, 19 Pick. 429; Dearborn v. Bowman, 3 Met. 155; Flemm v. Whitmore , 23 Mo. 431; McDougald v. McFadgin, 6 Jones, 89; Parker v. Carter , 4 Munf. 273; 6 Am. Dec. 513; Cook v. Bradley , 7 Conn. 62; 18 Am. Dec. 79; Mills v. Wyman, 3 Pick. 207; Lampleigh v. Brathwait, 1Smith's Lead. Cas., 9th Am. ed., 285; Conmey v. Macfarlane , 97 Pa. St. 363; Strough v. Brown, 38 Hun, 307; First Nat. Bank v. Chalmers, 39 Hun, 468; Schroeder v. Fink , 60 Md. 436; McCarty v. Hampton B. Ass'n, 61 Iowa 289; Fisher v. Briscoe, 10 Mont. 124; Barkley v. Hanlan , 55 Miss. 609; Williams v. Williams , 67 Mo. 661; Briggs v. Downing, 48 Iowa 550; Steers v. Holmes , 79 Mich. 430; Widiman v. Brown , 83 Mich. 241; Comstock v. Breed , 12 Cal. 288; Leverone v. Hildreth , 80 Cal. 139; Rosenberg v. Ford , 85 Cal. 610; Pico v. De la Guerra , 18 Cal. 427.) There was no benefit conferred or agreed to be conferred on appellant, and no prejudice suffered or agreed to be suffered by the plaintiff.
In order, therefore, to support the undertaking, it was necessary to show some new consideration moving at the time, to wit, the release of the property, and the setting aside of the judgment. A promise by one man to pay another's debt is nudum pactum, without a present consideration. (Comstock v. Breed , 12 Cal. 286.) The fact that the undertaking is in form a common-law bond does not alter the case.
Appellant, however, concedes that under the well-settled rule, if the recital establishes a promise on the part of appellant to pay the note, this court may so construe the statement. Appellant further urges that unless appellant is liable on the note as a partner, the promise to pay — assuming that there was a promise — is not only unenforceable as being an oral promise to pay the debt, default, or miscarriage of another, but is without consideration, and cites us to Comstock v. Breed, 12 Cal. 286, and Marinovich v. Kilburn, 153 Cal. 638, 642 [ 96 P. 303]. The former authority deals with the question of consideration and the promise by one person to pay the debt of another, and the latter with the inability of one bound by contract to shift the burden of his obligation by assigning the contract and the assignee consenting to the assignment without the consent of the party entitled to the benefits.