Baker v. Dillmann — 12 Abb. Pr. 313

Majority

p. 313

BAKER a. DILLMANN.

Supreme Court, Second District;

General Term, July, 1861.

Headnote

Statute of Frauds.—Promise to answer for the Debt of ANOTHER.

A promise to indemnify the promisee for having become security for a third person, is within the Statute of Frauds, and is void unless it is in wilting, and expresses a consideration.

A member of a voluntary association who were tenants under a lease, signed a guaranty of the payment of the rent; and members of the association subsequently, by a writing which did not express any consideration, promised to him that they would take the responsibility of his signature themselves. The rent remaining unpaid, judgment was recovered against him on his guaranty, which he paid, and assigned to the plaintiff the agreement to indemnify him.

Held, that there could be no recovery upon such agreement to indemnify; although contribution might have been compelled if the guarantor had been sued upon the lease or upon a promise to pay the rent.

The case of Mallory a. Grillett, 21 N. Y. (7 Smith), 412, considered, and a dictum disapproved.

Exceptions to nonsuit.

This action was brought by the plaintiff, as the assignee of one Charles Schurig, to recover the sum of one hundred and seventy-three dollars, paid by Schurig to the plaintiff, as surety for the payment of rent by the Brooklyn Turn Verein. The Turn Verein was an unincorporated association, of which Schurig and the defendants, together with others, were members. Schurig had signed a lease under seal for the Turn Verein, for five years, and also signed a guaranty by which he became surety for the payment of the rent reserved to Sarah Case, who was then the owner of the premises described in the lease. '

The lease and guaranty were executed and delivered on the first day of May, 1857. The Turn Verein vacated the premises on the first day of May, 1859.

The plaintiff, who had become the owner of the premises, obtained a judgment, in the City Court of Brooklyn, against

p. 314

Schurig, as surety for rent that had accrued after the first of Hay, 1859; and on the thirty-first day of December, 1859, Schurig paid to the plaintiff one hundred and seventy-three dollars, in full settlement of the claim against him as surety on the lease.

On the twenty-second day of April, 1859, the defendants signed a declaration, not under seal, in which they declare “that Charles Schurig, late member of our society, acted by signing the lease of our premises only in our name, and therefore we declare that we will take all the responsibilities and consequences on ourselves.”

This paper bore the stamp of the Turn Yerein, was not under seal, and did not express any consideration; nor did it appear on the trial that any consideration passed to the defendants.

Schurig assigned this paper to the plaintiff, who by this action sought to recover thereon the money so paid by Schurig, as surety, to her, the plaintiff.

On the trial of the action the judge nonsuited the plaintiff, on the ground that the agreement of the defendants was within the Statute of Frauds, and void for not expressing the consideration ; and he directed the plaintiff’s exception to be heard in the first instance at the general term.

D. P. Barnard,

for the plaintiffs, insisted that the case was not within the statute, and cited Berman a. Russell (20 Vermont, 205); 2 Parsons on Contracts, 301, 305, 306, 307; Johnson a. Gilbert ( 4 Hill, 178 ); Stephens a. Squire (5 Mod., 205); Brown a. Curtiss (2 N. Y. (2 Comst), 225); Cardell a. McNiel (21 N. Y. (7 Smith), 336).

James Eschwege,

for the defendants, cited Chitty on Contracts (1851), 441; Rix a. Adams ( 9 Verm., 233 ); Mallory a. Gillett (21 N. Y. (7 Smith), 412), and cases cited therein.

—The Social Turn Verein, an unincorporated association or society of individuals, hired of one Case certain apartments in Brooklyn. Carl Schurig executed a formal guaranty, under seal, of the payment of the rent to Case.

p. 315

These papers were both dated May 1st, 1857. Schnrig was a member of the Turn Verein at the date of the lease and guaranty, and for two years afterwards. The defendants were also members, and there were other persons who belonged to the society. On the 22d of April, 1859, the defendants executed the paper upon which the present suit is brought, by the present plaintiff as assignee. It is not under seal, and is to the effect that the defendants “ declare that Charles Schnrig, late member of our society, acted by signing the lease of our premises only in our name, and therefore we declare that we will take all the responsibilities and consequences on ourselves.” Schnrig never signed the lease, but if by a liberal construction this instrument be referred to the guaranty which he did sign, then it may be regarded as a contract to indemnify Schnrig against his guaranty.

Judge Comstock, towards the close of the lengthy and elaborate opinion which he delivered in Mallory a. Gillett, states among the undertakings which have been held not within the statute, the following—“ where the promisee was a mere guarantor for the third person to some one else, and the promisor agrees to indemnify him.” I understand this proposition to cover the ground of the present action; and if this proposition had been decided by the Court of Appeals, of course that would be an end of this question, and this nonsuit must be set aside. I am constrained to observe, however, that such is very far from the fact. The first paragraph of Judge Comstock’s opinion contains a clear and complete statement of the case then before the court, the judgment of the court upon it, and the reasons for it. The remaining nineteen pages contain a singularly acute and learned discussion of one branch of the Statute of Frauds. But perhaps I might say that the first paragraph of the opinion contains all which is necessarily connected with the question before the court, and all which the court decided in affirming the judgment of the Supreme Court. Certainly it would be safe to say that the proposition which I have now quoted is in no way involved in that decision.

I feel at liberty, therefore,-to consider this case and the proposition just quoted, by which the action is sustained, upon their merits. If the proposition is to be construed in the manner I have just indicated, I must be permitted to say, with great re

p. 316

spect, that it is not sustained by the authorities. In Chapin a. Merrill ( 4 Wend., 657 ), it was held that a promise-by one person to indemnify another for becoming a guarantor for a third person, is not within the Statute of Frauds. But in Carville-a. Crane ( 5 Hill, 483 ) the authority of this case was weakened and the reasoning doubted; and in Kingsley a. Baleome ( 4 Barb., 131 ) the contrary was expressly held. The opinion.of Judge Sill in the latter case contains a careful review of the authorities, and it was concurred in by Judge Selden and Judge Maynard. Whatever may be thought of the definitions of Judge Sill in the light of Judge Comstock’s reasoning, the case is an express adjudication, not overruled by a higher court, that a parol promise to indemnify the promisee for becoming bail for a third person, is within the Statute of Frauds. To the same effect is the very deliberate judgment of the Court of King’s Bench, by Lord Denman, in Grover a. Cresswell (10 A. & E:, 453). Considering the promise upon which the suit is brought, therefore, as a promise to indemnify Schurig against his guaranty of the debt of a third person, I am of opinion that the authorities hold that it should not only have been in writing, but should haye expressed the consideration, in order to' be valid. Upon principle, it is not easy to see why a guaranty for another is not equally a debt or engagement of the person by whom it is made, with a promise or a contract exclusively on his own account.

But it is insisted that this is a promise by one of several persons, jointly liable, that he will pay the debt. It may be conceded that such a promise would not be within the statute. Thus, if Schurig were one of the associates who hired apartments of Case, and liable jointly with others for the rent, he might probably have been held and sued separately upon a parol promise to Case to- pay the whole rent. It might also be, that after such a payment he'might have compelled contribution from his associates. But here was a formal guaranty by Schurig, upon which he was sued and a judgment obtained against him, not as a joint-debtor promising to pay the debt, but as a guarantor of the engagement of a third party; and the present action is not for contribution, but upon a promise of indemnity for this guaranty, to recover the whole amount paid, precisely as if there had been no connection between the parties. The original debt of the association was unpaid, and the guaranty of its payment

p. 317

by Schurig outstanding and unsatisfied when the defendants made this promise. There was no consideration in fact for their promise, and none expressed in the writing containing it. I am of opinion that this paper cannot have the effect claimed for it in the present action: whether it could have any operation in respect to any original liability of Schurig upon the lease independent of tlie guaranty, is a question upon which it is not necessary to express our opinion. Of course he could compel contribution if he had been sued upon the lease or upon a promise to pay the rent. It is, I think, very doubtful if he could, do any thing more, in the state of facts now presented. At all events, he cannot hold the defendants by their promise to indemnify him for his guaranty, which might involve the costs of the recovery against him, as well as the amount of the judgment.

I think the defendants should have judgment.

Footnotes

* Present, Emott, Brown, and Schrugham, JJ.