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Johnson v. Gilbert

4 Hill & Den. 178 Court N.Y. English

Delivered by Bronson, J.

Contents

Majority

p. 178
Johnson vs. Gilbert.

Headnote

The statute of frauds relating to promises to answer for the debt, default or miscarriage of another, (2 R. S. 135, § 2, mid. 2,) applies only where the promisor stands in the relation of a surety for some third person who is the principal debtor. Per Bronson, J.
Accordingly, in an action on a written promise to guaranty the payment of a chattel note, it appearing that the defendant transferred the note to the plaintiff and made the guaranty in consideration of moneys paid by the plaintiff for the defendant at his request; held, that the promise was valid, though it expressed no consideration.
Error to the Chenango C. P. Johnson sued Gilbert before a justice of the peace in assumpsit, and recovered $29,27 besides costs. The defendant appealed ; and on the trial in the C. P., the plaintiff offered to prove the following case. One Eastman made a note as follows: “ By the first of September next, for value received, I promise to pay William D. Gilbert [the defendant in this suit] a first rate two horse wagon wood„
p. 179
painted, with the labor of setting the boxes. Guilford, June 15, 1833. (Signed) George Eastman.” On the 9th day of October, 1833, the plaintiff, at the defendant’s request, paid to one James Sherwood a debt of twenty-five dollars which the defendant owed to Sherwood; and in consideration of that payment, the defendant transferred the note of Eastman to the plaintiff, and endorsed thereon a guaranty in these words : “I hereby guaranty the payment of this note, which is $25. (Signed) William D. Gilbert.” The plaintiff had repeatedly demanded payment from Eastman, but he had not paid the note. The court decided that the contract was void within the statute of frauds, and nonsuited the plaintiff He excepted, and, after judgment, brought error.
H. Bennett, for the plaintiff in error,
cited Leonard v. Vredenburgh, (8 John. R. 29;) Gold v. Phillips, (10 id. 412;) Myers v. Morse, (15 id. 412;) Olmsted v. Greenly, (18 id. 12;) Farley v. Cleveland, (4 Cowen, 432, and 9 id. 639, in error;) Chapin v. Merrill, ( 4 Wend. 657 ;) Rogers v. Kneeland, (10 id. 218, and 13 id. 114, in error;) Mercein v. Andrews, (10 id. 461.)
Jl. C. Moses, for the defendant in error,
cited 2 R. S. 135, §2; Packer v. Willson, ( 15 Wend. 343 ;) Douglass v. Howland, (24 id. 35.)

By the Court,

If the statute of frauds has any thing to do with this case, the plaintiff cannot recover. The written guaranty neither expresses a consideration, nor can it be inferred from the writing that it was made upon any consideration. (2 R. S. 135, § 2.) But the statute of frauds has nothing to do with the case. That only applies where the person making the promise stands in the relation of a surety for some third person who is the principal debtor. This was not an undertaking by the defendant to pay the debt of Eastman; but it was an agreement to pay his own debt in a particular way. The plaintiff had, upon request, paid a debt of twenty-

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five dollars which the defendant owed to Sherwood, and had thus made himself a creditor of the defendant to that amount. If the matter had not been otherwise arranged, the plaintiff might have sued the defendant and recovered as for so much money paid for him upon request- But the plaintiff agreed to accept payment in a different way, to wit, by the transfer of Eastman’s note for the wood work of a wagon, with the defendant’s undertaking that the note should be paid. The defendant) instead of promising that he would pay himself, agreed that Eastman should pay. He might do that, whether Eastman was his debtor or not; and the fact that Eastman was a debtor, d.oes not change the character of the defendant’s undertaking, and make it a case of suretyship within the statute of frauds.

If A; promise B., upon a sufficient consideration moving wholly between them, that a stranger will pay a sum of money or do any other act, this is an original undertaking, and not within the statute; and it makes no difference whether the stranger is under an obligation to do the act or not. If A. sell and deliver his horse to B. upon a promise by the latter that C. will pay a hundred dollars, the agreement is just as obligatory as it would have been had B. promised that he would pay the money himself, and in neither case is a writing essential to the validity of the contract. And if in such a case B. deliver A. the note of C. for one hundred dollars, and agree that the note shall be paid at maturity, or that it may be collected by due process of law, it is still an original undertaking, and not within the statute of frauds- But if C. wishes to obtain credit with A., or, being his debtor, desires forbearance, and B. comes in as his surety, there the undertaking of B. is collateral to that of the principal debtor, and the promise must be in writing.

The judgment must be reversed; and, in pursuance of a stipulation contained in the case, judgment must be rendered for the plaintiff, instead of awarding a venire de novo.

Ordered accordingly.

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