Speyers v. Lambert

The action is brought against the defendant as surety for one Mrs. Marshall, a tenant of

“New York, April 11, 1867.

“ Jas. Speyers, Esq.:

“ Dear Sir—The house you have rented to Mrs. A. B. Marshall, I agree herewith to hold myself responsible for the payment of the monthly rent, say $400 per month.

“ Yours respectfully,

“Edward Lambert.”

After the receipt of this instrument the plaintiff signed the lease and directed the same to be delivered to Mrs. Marshall, and on the first of May following Mrs. Marshal went into occupation of the premises under said lease. The defendant paid the first month’s rent, and when the agreement was first made he stated to the plaintiff that he had the rent for six months in his hands. The rent sued for, accrued during the first six months of the tenant’s term, to wit: from June 1, 1867, to October 1, 1867, for which amount, together with interest, the learned justice presiding at the trial directed a verdict for the plaintiff, subject to the opinion of the court at general term.

The defendant insists, however, that judgment should be ordered for him as in case of non-suit, because the instrument sued upon is void by the statute of frauds, for the reason that it does not express upon its face a consideration. He claims that this is necessary, notwithstanding this requirement does no longer exist in express terms since the

. The defendant therefore wholly rests his case upon the assumption that such was the settled law prior to 1830 in the absence of all statutory requirements to this effect. The first case in which this proposition was laid down was Wain agt. Warlters (5 East, 10), decided in the Queen’s Bench, in 1804, in which the defendant had promished in writing to pay the debt of another person, which was past due. Although the decision of this case was several times disapproved by Lord Eldon, and particularly in Gardom (15 Ves., 286), it was never overruled, and afterwards the same point being directly presented to the judges of the Queen’s

In the state of New York the question also gave rise to a variety of opinions, and with all due respect to the expres

The construction given in Wain agt. Warlters, to the term “agreement,” in the English statute, was adopted by the supreme court of the state of New, in 1808, in Sears agt. Brink, (3 Johns. R., 210), and followed in Kerr agt. Shaw, ( 13 Johns., 236 ), decided in 1816. In Livingston agt. Tremper, ( 4 Johns., 416 ), the decision in Sears agt. Brinh, was qualified so as not to include contracts under seal, upon the ground that the statute of frauds was not meant to alter the common law rule in regard to such contracts, that at common law any promise under seal was valid, and that a seal imports a consideration. In Leonard agt. Vredenburgh, ( 8 Johns., 23 ), the supreme court awarded a new trial, upon the ground that the testimony offered on the trial as to the consideration was rejected, for the reason that the consideration for the promise was not stated in the writing produced. Kent, Ch. J., in delivering the opinion of the court, says: “the case appeared to me then to be governed by the decision in Wain agt. Warlters,which was recognized by this court in Sears agt. Brink; but, upon better reflection, I now think that the plaintiff ought to have recovered upon that contract.”

In Bailey agt. Freeman, ( 11 Johns., 223 ), Platt, J., in delivering the opinion of the court, approved of the decision in Leonard agt. Vredenburgh, (supra), and held that where the credit is originally given to the defendant as surety, it is unnecessary to show a separate consideration for the promise of the defendant; that where the principal contract and the guaranty were simultaneous, the consideration of the former supports the latter, that the consideration may be shown by parol proof in such case, and intimated that the doctrine laid down in Wain agt. Warlters, should be confined to promises to pay an independent previously existing debt of

The case of Nelson agt. Dubois, ( 13 Johns., 175 ), is to the same effect. The opinion of the court was delivered by justice Spencer, while justice Van Ness, who had delivered the opinion of the court in Sears agt. Brink, (supra), dissented.

In Rogers agt. Kneeland, ( 10 Wend., 251 , 252), justice Nelson, in delivering the opinion of the court, not finding it necessary to disapprove of Sears agt. RrinJc, and assuming it to have been followed in other cases,-which I have shown has not been the fact, held that the consideration-may be implied or inferred upon the general principle applicable to all instruments or agreements, that whatever may be fairly implied from the terms dr language of an instrument is in judgment of law contained in it. This decision was subsequently affirmed by the court of errors in 1834 (. 13 Wend., 114 ), where it was held, however, that the- object of the statute was to reach every case of mere suretyship, whether the agreement of the surety was collateral, to a previous promise or liability on the part of the principal debtor, or only collateral to a promise or agreement made at the same time with the promise of the surety to indemnify against a future default or liability of such principal debtor, and that where the' whole credit is not given to the person who comes in to answer for another, the promise is collateral. The chancellor, in this opinion, regretted that the courts had felt themselves bound to give a construction to the statute, by which it was made, in many cases, to operate as a fraud on those who have acted upon the faith of a written promise of a third person, but which, unfortunately, had no sufficient consideration actually appearing upon the face of the writing; and in noticing the amendment of the statute, by the revision of 1830, the chancellor intimated that it was a question whether the legislature has not gone still further in the -Revised Statutes, and inadvertently adopted provis

But even in England, it was subsequently to the decision in Wain agt. Warlters, held not to be necessary that the consideration should be formally and precisely expressed in the memorandum, but that the same might be implied or inferred from the language of the instrument. This led to the remark of Tindall, Ch. J., “ That if by fair inference we can find that, that is sufficient—if we can, as it were, spell it out from the agreement.” This practice seems to have been adopted in this state to some extent in disposing of cases presenting no features by which they could be distinguished from Wain agt. Warlters; but it was disapproved by the revisers and the legislature, who thought that it was improper for the courts to find out the consideration of an agreement by inferring or implying or spelling out the consideration, or by making it out by argument or conjecture; and it was enacted by the legislature in the adoption, of the Revised Statutes, that the agreement should express the consideration. This remained the law of the state for over thirty years, but the question what cases did or did not come within this requirement, and the question as to the sufficiency of the expression of the consideration in each individual case, gave rise to much additional litigation, and produced a still greater conflict of opinion than had previously existed, and the legislature in 1863 saw fit to again strike out the provision of the statute which required that the consideration should be expressed in the instrument. The defendant therefore insists that this amounts to a restoration of the act of 1813, and that the restoration carries with it all the results of the judicial interpretation put upon that act. If this be correct, we are at liberty to spell out the consideration from the defendant’s agreement, and I think it could be done (see Dunning agt. Roberts, 35 Barb., 463 ). But I do not think it necessarily follows that,

On the contrary, it is fair to assume, that in view of the fact that many of the states had repudiated the doctrine of Wain agt. Warlters from the start; that in others, where it had been followed to some extent, it was either considerably modified by the courts, and in the course of time restricted to a small class of cases, or entirely abrogated by statute; that even the courts of England found themselves compelled to modify and refine it by degrees ; that after an attempt and trial for more than thirty years to enforce it in this state by express statutory enactment, it was found to do more harm than good inasmuch as it operated as a fraud on the merchant, the farmer, the mechanic and the laborer, who acted upon the faith of the written promise of a third person, but who in most cases found it very difficult to state the real consideration of the collateral promise in legal and technical form, so as to make a valid agreement; that therefore, in this age of great and rapid commercial progress the ■further requirement of a compliance with a technical rule iof law riot prescribed by nor observed in other states, the ■enforcement of which had proved an endless source of trouble,annoyance and injustice,without yielding in a correspond

I have no doubt that since 1863, securities to an immense amount have been taken in business throughout this state, in reliance upon the idea that a compliance with the old rule is no longer necessary; the interpretation contended for by the defendant would place all the contracts entered into in respect to these securities in jeopardy, and would thus greatly increase the uncertainty of the law, which is now proverbial.

In conclusion I refer to the case of Thompson agt. Blanchard, (3 Comst., 337), in which it was held, by the court of appeals, that an undertaking required by statute to be en tered into by sureties, in order to give a right of appeal, is valid if it contain the necessary stipulations, although it does not express a consideration, and is not under seal; and that if it could be said that such an instrument would not be obligatory by the statute of frauds, the very obvious answer is, that the legislature of 1848 had the same power to restore the common law, as to this class of securities, that their predecessors had to abolish it.

It may be a question whether, under the peculiar circumstances of this case, the defendant is not liable upon his agreement as an original undertaking, but under the views already expressed it is unnecessary to discuss this point.

Judgment absolute should be ordered for the plaintifl on the verdict, with costs.

Barbour, Ch. J.—I concur.

Fithian, J.—I concur.