Majority
p. 145Hunt and others vs. Brown.
Headnote
Where the maker of a note procured a third person to become his surety by an en. dorsement thereon in these words—“ I guaranty the collection of the within noteheld, that the guaranty was void within the statute of frauds for not expressing a consideration.Otherwise if it had been a guaranty of payment, for that imports a consideration.
Assumpsit, tried before Kent, C. Judge, at the New-York circuit, in February, 1842. The plaintiffs sought to recover upon the defendant’s guaranty of a note as follows:—“ §287,10. Six months after date I promise to pay to the order of John Bagley, two hundred eighty-seven Tyu dollars at the Lockport Bank, for value rec’d. Lockport, March 20, 1837. (Signed) B. G. Lewis.” (Endorsed) “ J. Bagley. Pay Thomas Hunt & Co. H. Thomas.” Then followed the defendant’s undertaking which was thus:—“ I guaranty the collection of the within note. (Signed) Wm. C. Brown.”
The plaintiffs had commenced a suit upon a note which they held against Lewis (the maker of the above note) and a third person. Lewis applied to the plaintiffs’ attorney for six months further time, and offered to give Bagley, Thomas and the defendant as sureties on a new note. The attorney assented to the proposition. Within a few days afterwards, Lewis brought the note now in suit, but without the guaranty of the defendant, and for that reason the attorney declined receiving the note. Lewis then went away, and soon after returned with the defendant’s guaranty on the note. The attorney thereupon received the new note, gave up the old one, and discontinued the suit. The defendant was not present when any part of the business was transacted between Lewis and the attorney, and, so far as appeared, he knew nothing about the matter, and had no consideration for his guaranty. The plaintiffs had sued the maker and endorsers of the note and proceeded to judgment and execution, but nothing could be collected from them.
The defendant insisted that the contract was void under the
p. 146cited Packer v. Willson, ( 15 Wend. 343 ;) Douglass v. Howland, ( 24 Wend. 35 ;) Northrup v. Jackson, ( 13 Wend. 85 .) cited Wain v. Warlters, (5 East, 10 ;) Sears v. Brink, ( 3 John. Rep. 214 ;) Leonard v. Vredenburgh, (8 id. 29 ;) Bailey v. Freeman, (11 id. 221 ;) Wheelwright v. Moore, (1 Hall’s Rep. 201;) Packer v. Willson, ( 15 Wend. 343 ;) Watson’s ex’rs v. M’Laren, (19 id. 557, 26 id. 425, S. C. in error ;) Oakley v. Boorman & Johnston, (21 id. 588;) Douglass v. Howland, (24 id. 36;) Parker v. Bradley, ( 2 Hill, 584 ;) Parks v. Brinkerhoff, (id. 663.)
statute of frauds, because no consideration was expressed in the guaranty. The judge overruled the objection, and decided that the plaintiffs were entitled to a verdict. Verdict for the plaintiffs. The defendant now moved for a new trial on a bill of exceptions.
G. P. Barker, (attorney general,) for the the defendant,
P. A. Cowdrey, for the plaintiffs,
This is a collateral undertaking by the defendant as a surety to pay the debt of Lewis, and no consideration is expressed in, or can be inferred from the written agreement. The promise is clearly void within the statute of frauds. If it had been a guaranty of payment, the case would have fallen within the decision in Manrow v. Durham, ( 3 Hill, 584 ,) and the contract would have been upheld on the ground that it was a promissory note, which imports a consideration. But this is a guaranty of collection, and I am not aware that such an undertaking has ever been deemed a promissory note. The judge has reviewed his decision at the circuit and ordered a new trial, in which we think he was quite right.
New trial granted.
Cases cited
- Packer v. Willson 15 Wend. 343 p. 146
- Douglass v. Howland 24 Wend. 35 p. 146
- Northrup v. Jackson 13 Wend. 85 p. 146