This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If two or more persons are jointly liable on a debt, a release of one of them by the obligee is a waiver of a legal right. Since the obligee could, if necessary or convenient, enforce payment of the entire amount out of the property of any one of them, a payment by any one debtor of part of the debt is only doing part of what he is legally bound to do, and is no consideration for a contract to release him from further liability.1 On the same principle, a promise by one partner already liable on a partnership debt to discharge such debt is no consideration for an agreement to release the other partner.2 So a promise by one holding joint and several obligations to enforce them as several obligations for the share of each obligor;3 a promise by the holder of a partnership note to release one partner therefrom;4 or a promise to release a surety,5 are all without consideration. Even if the liability is not technically joint, but the creditor has a right to hold either of two or more parties, his promise to discharge one of them is without consideration.6 Conversely, an assumption of joint liability by one not originally liable is unenforceable, unless supported by a valuable consideration. Thus where A is indebted to B, C's subsequent promise to become surety for A is unenforceable, unless some new consideration intervenes.7 So a promise by a subsequent accommodation indorser of a note to a prior accommodation indorser to pay one-half of the note,8 has no consideration.
19 Redman v. Deputy, 26 Ind. 338; McComb v. Kittridge, 14 Ohio 348; Wood v. Newkirk, 15 O. S. 295.
1Indiana. Fensler v. Prather, 43 Ind. 119; Fletcher v. Wurgler, 97 Ind. 223. Release of joint principal by surety. Cheeseman v. Wiggins, 122 Ind. 352, 23 N. E. 945.
Iowa. Release by indorsee. Bender v. Been, 78 la. 283, 5 L. R. A. 596, 43 N. W. 216.
Kansas. Eagle Mfg. Co. v. Jennings, 29 Kan. 657, 44 Am. Rep. 668.
Massachusetts. Smith v. Bartholomew, 42 Mass. (1 Met.) 276, 35 Am. Dec. 365.
Tennessee. Miller v. Fox, 111 Tenn. 386, 76 S. W. 893. Release of surety by payee. Martin v. Frantz, 127 Pa. St. 389, 14 Am. St. Rep. 859, 18 Atl. 20.
2 Ray v. Pollock, 56 Fla. 530, 47 So. 940; Wadhams v. Page, 1 Wash. 420, 25 Pac. 462; and see Motley v. Wickoff, 113 Mich. 231, 71 N. W. 520, which is, however, rather doubtful on this point. Agreement to release retiring partner and look solely to partner remaining in business. Walstrom v. Hopkins, 103 Pa. St. 118.
3 Davis, etc., Mfg. Co. v. Dix, 64 Fed. 406.
4 Fowler v. Coker, 107 Ga. 817, 33 S. E. 661 [citing, Maness v. Henry,.96 Ala. 454, 11 So. 410; Eagle Mfg. Co. v. Jennings, 29 Kan. 657, 44 Am. Rep. 668].
5 Bardwell v. Witt, 42 Minn. 468, 44 N. W. 983.
6 Promise to look to vendee of debtor exclusively. Pope v. Vajen, 121 Ind. 317, 6 L. R. A. 688, 22 N. E. 308.
7See Sec. 625 et seq.