Greene v. Odell — 43 A.D. 494

Majority

p. 494

Oliver A. Greene, Respondent, v. Kate E. Howe Odell, Appellant, Impleaded with Henry Odell and Another.

Headnote

Guaranty of the payment of a bond— “for value received" is a sufficient statement of the consideration therefor.

The following indorsement, “ For value received, I guaranty the payment of the within bond,” written on the back of a bond to which a mortgage is collateral, executed by the mortgagor’s wife in consideration of the mortgagee’s agreement .to forbear the enforcement of payment of the interest due upon the bond and mortgage, followed by actual forbearance on the part of the mortgagee, is sufficient to charge the mortgagor’s wife with liability for any deficiency arising upon a foreclosure sale of the mortgaged property.

Appeal by the defendant, Kate E. Howe Odell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 24th day of March, •,¡899, upon the decision of the court rendered after a trial at the Dutchess County Special Term. ■ ,

p. 495

A. M. & G. Card, for the appellant.

Charles A. Hopkins, for the respondent.

This action is brought for the foreclosure of a mortgage, and also to charge the defendant Kate E. Howe Odell as a guarantor of payment of the bond which the mortgage accompanied and for which it was collateral security.. The mortgagor executed the bond and mortgage in April, 1893, and subsequently married Kate E. Howe. On May 1, 1896, Odell was in default for the payment of interest, and upon that date he gave his note for ninety dollars. On January 4, 1897, the plaintiff demanded additional security, as the note was unpaid and the interest was accumulating. Thereupon the defendant Kate E. IT. Odell executed a guaranty, indorsed upon the back of the bond in the following words:

“ For value received, I guaranty the payment of the within bond.

•'*' Dated Janua/ry 4th, 1897.

KATE E. H. ODELL.

“ Witness, J. H. Odell.”

The agreement upon the part of the mortgagee for the execution of this contract was to forbear the' enforcement of the interest as it fell due upon the bond and mortgage, and, after its execution, no interest was paid thereon except the sum of fifty dollars, and the matter thus remained until the commencement of this action in February, 1899. The contract in form was sufficient to charge the defendant Kate E. H. Odell with liability. (Smith v. Northrup, 80 Hun, 65 ; affd., 145 N. Y. 627 ; Miller v. Cook, 23 id. 495; Hayes v. Hood, 10 N. Y. Supp. 265 .) The cases relied upon by the appellant, such as Drake v. Seaman ( 97 N. Y. 230 ) and others, are without application. They simply held insufficient the contracts then under consideration, which failed to express the consideration or to indicate to whom the promise was made. It is not necessary that the consideration should be set out at length. (Daniel Neg. Inst. §§ 1766, 1767.) In the present case the guaranty recites the consideration, refers to the instrument to which the guaranty applies, and resort may, therefore, be had to it to construe the guaranty. When such resort is had, the instrument of guaranty becomes perfect as a contract within the" Statute of Frauds.

p. 496

The agreement to forbear, followed by actual forbearance, became a good consideration, even though foreclosure of the mortgage might have been begun the day after execution. (Strong v. Sheffield, 144 N. Y. 392 ; Porter v. Thom, 30 App. Div. 363 .) By the terms of her contract the defendant Kate E. Howe Odell obligated herself to pay the amount secured by the bond and mortgage, in consequenee of which she becomes liable for any deficiency which may arise in the event the mortgaged property does not sell for. sufficient to pay the debt, interest and costs. The judgment was, therefore, right in fixing her liability therefor. "It should be affirmed.

All concurred.

Judgment affirmed, with costs.

Cases cited

Drake v. Seaman 97 N. Y. 230 N.Y. 1884-11-25 p. 495
Strong v. Sheffield 144 N. Y. 392 N.Y. 1895-01-15 p. 496