FORMATION OF THE OBLIGATION.
14. In construing the language of the eon tract to decide whether it constitutes an ori ginal promise or a guaranty, it is difficult to lay down a general rule: the circumstances of particular cases vary widely. The word guaranty or surety may or may not indicate correctly the contract, and the circumstances of the case may make au indorser liable as a guarantor or surety, wittn..at any words to in dicate the obligation. 24 Wend. N. Y. 456.
In general, if a promissory note is signed or indorsed when made by a stranger to the note, he becomes a joint promisor and liable on the note, 44 Me. 433 ; 9 Cush. Mass. 104; 6 Me. 478 ; 14 Tex. 275 ; 10 Rich. Law So. C. 17 ; 20 Mo. 571; and this will be true if — indorsed after delivery to the payee in pur suance of an agreement made before the de livery, 7 Gray, Mass. 284 ; 9 Mass. 314 ; 11 Penn. St. 482 ; 19 id. 260 ; but parol evidence may le introduced to show that he is a surety or guarantor. 23 Ga. 368 ; 18 111. 548. If the third party indorses after delivery to the payee without any previods agreement, he is merely a second indorser, 11 Penn. St. 466; 28 id. 147, 189, 193 ; and he is liable as a maker to an innocent holder. 20 Mo. 591. But it was held otherwise where the signature was on the face of the note, 19 N. H. 572 ; and the same is held where he signs au inception of the note, in pursuance of a custom, leaving a blank for the payee's signature above his name. 12 La. Ann. 517. In Connecticut, such an indorser is held .to guaranty that the note shall be collectible when due. 5 Conn. 595 : 14 id. 479 ; 25 id. 576. The titne of signing may be shown by parol evidence. 9 Ohio, 139; 12 id. 228.
It has been held that a third person in dorsing in blank at the making of the note may show his intention by parol, 11 Mass. 436 : 13 Ohio, 228 ; but not if he describes himself as guarantor, or if the law fixes a precise liability to indorsements in blank. 2 Hill, N. Y. 80 • 4 id. 420. But this has been doubted. 33 Eng. L. & Eq. 282. In New York the cases seem to take the broad ground that an indorser in blank, under all circumstances, is an indorser merely, and cannot be made a guarantor or surety. 4 Du. N. Y. 45 ; 7 Hill,
N. Y. 416; 1 N. Y. 324; 2 id. 548.
15. In regard to the consideration neces sary to sustain the contract of guaranty or suretyship, it need not necessarily be a con sideration distinct from that of the principal contract. Where the two contracts are simul taneous, the guaranty may share the con sideration of the other. 8 Johns. N. Y. 29; 1 Paine, C. C. 580 ; 24 Wend. N. Y. 246 ; 2 Pet. 176 ; 3 Metc. Mass. 396 ; 36 N. H. 73 ; 3 Kent, Comm. 122.
The giving of new credit where a debt already exists has been held a sufficient con sideration to support a guaranty of the old and new debt, 15 Pick. Mass. 159 ; 15 Ga. 321; but the weight of authority would seem to require that there should be some further consideration. Browne. Stat. Fr. 191 ; 2 Wile. 94 ; 7 Term, 201 ; 5 East, 10 ; 1 Pet. 476 ; 3 Johns. N. Y. 211 ; 20 Me. 2£i ; 24 id. 177 ; 29 id. 79 • 7 Harr. & J. Md. 457 ; R. M. Charlt. Ga. 3 Forbearance to sue the debtor is a good consideration, if definite in time, Hardr. 71; 1 Kehl. 114 ; or even if of considerable, Croke Jac. 683, or reasonable time. 3 Bulstr. 206; Burge, Suret. 12. But there must be an actual forbearance, and the creditor must have had a power of enforcement. 4 East, 465 ; 3 Term, 17; Willes, 482. But the fact that it is doubtful whether such a power exists does not injure the consideration. 5 Barnew. & Ad. 1,23. A short forbearance, or the deferment of a remedy, as postponement of a trial, or Postponement of arrest, may be a good con sideration ; a,nd perhaps an agreement tc defer indefinitely may support a. guaranty.. Browne, Stat. Fr. 190; I Cow. N. Y. 99; 4 Johns. N. Y. 257 ; 2 Rich. So. C. 113 ; 6 Conn. 81; 5 Jones, No. C. 329. A mere agreement not to push an execution is too vague to be a consideration, 4 McCord, So. C. 409. and a postponement of a remedy must he made by agreement as well as in fact. 3 Cush. Mass. 85 ; 11 Metc. Mass. 170; 6 Conn. 81; 7 id. 523; 11 C. B. 172.