Parks v. Brinkerhoff — 2 Hill & Den. 663

Majority

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Parks vs. Brinkerhoff and others.

Headnote

A promissory note which purported in the body of it to have been given for value received, arid to bind the Fishkill Iron Company alone, was signed by two of its officers as such, together with several others in their individual names: Held, in an action against the latter, that their signatures indicated an intent to be responsible as sureties, and that they might be treated by the holder as joint and several makers with the company.

The signature of sureties to an instrument so drawn as to express an obligation to pay on the part of their principal alone, is an effectual promise in writing by the sureties, within the statute of frauds.

It is not necessary that a promise by a third person to pay the debt of another, should be expressed in any particular form to satisfy the statute of frauds ; and hence, a mere blank endorsement, made under such circumstances as to import an intent to be bound, will answer.

Had the defendants in this case endorsed the note in blank, instead of signing it as they did, inasmuch as the note was probably not negotiable, the plaintiff might have written an absolute guaranty over their names, and subjected them as joint and several makers with the company. Semble.

Assumpsit, tried at the Putnam circuit in May, 1841, before Ruggles, C. Judge. The suit was against Tunis Brinkerhoff, Isaac R. Adriance, Uriah'Gregory and Ira Spooner, upon a note in these words:

“ $2000.

For value received, the Fishkill Iron Company promise to pay to the order of Frederic Parks, (the plaintiff,) two thousand dollars, with interest from first September, A. D. 1838, at six ' per cent per annum, payable on the first September, A. D. 1840, in safety fund bank notes of the state of New-York in regular standing, at the office of said company in Fishkill Dutchess Co. Fishkill, January 30, 1838.

(Signed,) James Emott, Pres’t. A. W. Spooner, Agent. Tunis Brinkerhoff. Isaac R. Adriance. Uriah Gregory. Ira Spooner.”

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On the trial, after proving the hand-writing of all the signers of the note, the plaintiff rested his case, and the defendants’ counsel moved for a nonsuit on the ground, among others, 1. That as the note purported upon its face to have been given by the Fishldll Iron Company, it was binding upon the company, and not upon the individual signers thereof; 2. That if the undertaking of the defendants could be deemed a guaranty, it was void by the statute of frauds; and 3. That no demand of safety fund bills had been proved previous to the commencement of the suit. The plaintiff then gave evidence of a demand of the bills at the office of the company on the 4th of September, 1840; and the motion for a nonsuit was renewed upon the other grounds stated. The circuit judge refused to direct a nonsuit, and the defendants excepted. The jury found a verdict for the plaintiff, and the defendants now moved for a new trial on a bill of exceptions.

IS. Baratío, for the defendants.,

M. T. Reynolds, for the plaintiff.

By the Court,

The note sufficiently expresses a consideration, but purports on its face to bind the company alone. It is then signed by the president and agent, whose names are followed by the signatures of the defendants in the place where we should look for those names, had they been expressly mentioned as sureties. Had the names been endorsed in blank, inasmuch as the note was probably not negotiable, the plaintiff might I think have written an absolute guaranty over the endorsement, which would have subjected the defendants in that form as joint and several makers with the company. The names being placed at the foot, import the same thing even more clearly. No other purpose can possibly be imagined. They do not declare themselves agents or witnesses. They must have meant to be makers or nothing. TJt res magis valeat quam pereat, the instrument should enure as the parties intended it should. If it were ambiguous, it is by no means

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clear that it might not be made available by extrinsic evidence. But it is not. The import is, we promise jointly with the company.

It is supposed that the statute of frauds is in the way; and this is an objection which has been much urged, and seems to have constituted the main obstacle to raising a guaranty upon a blank endorsement. The answer finally given, however, is, that the endorsement is an effectual writing and signing of a contract, within the meaning of the statute, just as much so as if the words had first been written out. It is not necessary that a promise should be expressed by any particular form of words in order to satisfy the statute. Nor is it necessary that any thing more should appear, even to make a valid guaranty, than the intent of the party as collectable from necessary implication. A signature or endorsement in blank, holding such a relation as to import an intent to be bound, is the expression of an obligation in writing as well as a signing. It may, says Peters, J., (Beckwith v. Angeli, 6 Conn. Rep. 321 ,) be moulded into any shape to effectuate the intent of the parties.

But there is, I think, quite a number of cases which will hardly be denied to come with the force of direct authority. An appeal bond signed and sealed by a surety, though the name of the principal only was inserted in the body of the bond, was holden to be binding on the surety. (Ex parte Fulton, 7 Cowen, 484.) The court said: “ A full intent to be bound by the terms of this bond is plain from the act of executing it.” Of a like case, Parsons, C. J. said: " It is very clear, Cushing (the surety) would be holden as an obligor, on his executing the bond, if the blank had never been filled up with his name.” (Smith v. Crooker, 5 Mass. Rep. 540 .) Again, in Williams v. Greer's adm’rs, ( 4 Hayw. 239 ,) speaking of a like case, the court of Tennessee say: “ Though Greer’s name is not mentioned in the bond, yet he signed, sealed and delivered it, and must be considered as bound thereby.” In those cases, as here, one name only was mentioned as obligor. Yet this was

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not held to exclude the inference of an intent in all who signed to be bound. A declaration might, following the legal effect, have charged all as obligors in the bond. So here of the defendants, as promissors in this note._

New trial denied.