Majority
p. 221Bailey and Bogert against Freeman. NEWYORK, August, 1814.
Headnote
dement in writing to dehver to A. a quantity of síx’móntiis'at costs on an ex- \,7 ji. against ^^"cutton was l°1,6 1'f* bona. At the agreement,f. tes„egUara^* viz. “i guaranty the performance of ^eement^and e'-eiy -par^ part of B. to ed.”P&c°rmiu Jhuaguamnty against^, n an original g°eemení,an¿ Pao™^ vieusty subSJfJd «í af^hin the statute of agreement gÜi^kut/ 1 of ^ti\°™cc0<|la11 tract, indudíkluüon^sta^-cement,6 tó which the guaranty referred ; and if no consideration bad been expressed in the principal agreement, it might be shown by paréisTHIS was an action of assumpsit on a special agreement, tried before Mr. Justice Van Ness, at the Nem-York sittings in 3 . November, 1813, (See S. C. on Demurrer, voL 4. 280.)
The plaintiffs recovered a verdict against Noel Blanche, in 1808, on which a fi.fa. was issued and levied on the goods of Blanche, who applied to the plaintiffs for time, and offered to pay the costs and give security for the debt, payable in six months, in chocolate, at a stipulated price, if the plaintiffs would cause the execution to be returned nulla bona, and forbear all further proceedings under the judgment, for six months; and the defendant was then named as the person who was to be security for the performance of the stipulation of Blanche. The attorney of the plaintiffs then drew up the following memorandum, which was signed by Blanche.
“ I do hereby agree to deliver Messrs. Bailey Sr Bogert, within six months from the date hereof, fresh and good chocolate, equal in quality to Caldwell’s of Albany, at a discount of five per cent, from the wholesale price at which Caldwell’s chocolate of the same quality may be selling at the time of delivery, and to the amount of 392 dollars and 71 cents, with interest from the 5th of May last; and further, that all the costs, expenses, fees, and poundage on the execution issued by Messrs. Bailey S' Bogert against me, being paid by me, their attorneys shall direct the said execution to be returned nulla bona. Nem-York, 11 th of July, 1808, N. Blanche.” 1
Blanche then went with a clerk of the plaintiff’s attorney to the counting-house of the defendant, who signed the following glia.ra.Ilty: •
“I do hereby guaranty the performance of the above agreement, and every part thereof, on the part of Noel Blanche, to be performed at the time and to the amount therein mentioned : provided the said Noel Blanche, shall, when the same ought to be performed, be then ?n life, but not otherwise. Nem-York, 11 th July, 1808. Phineas Freeman.”
p. 222relied on the case of Leonard v. Vredenburgh, ( 8 Johns. Rep. 29 .) as conclusive. He contended that here were concurrent acts. It was all one transaction, and the consideration in the original agreement embraced the guaranty of the defendant. The consideration on the part of Blanche was sufficient. The execution was returned nulla bona, and
The counsel for the defendant objected to the admission of agTeement and guaranty in evidence, 1. Because they were evidence of an agreement and guaranty different from those set-forth in the declaration; 2. Because they contained no consideration for any promise by the defendant, and no parol evidence of any such consideration was admissible, nor can any parol evidence- be admitted to show a different agreement from the writing produced, nor could the plaintiffs give evidence of any verbal communication between the original parties previous to the written memorandum; or if the plaintiffs could, in any case, give evidence of any agreement not contained in the writing, they must show that the defendant was acquainted with it, and á party to it at the time of signing his guaranty.
The judge admitted the evidence, reserving the points raised by the defendant's counsel.
It appeared that on the 12th of January, 1809, the plaintiffs informed the defendant that Blanche had not performed his agreement, and required the defendant to perform his guaranty; that Blanche was, and still is, living, and that no proceedings had been had under the judgment, subsequent to the agreement. •
Blanche paid the costs of suit on the 26th of July, 1808, and the sheriff shortly after returned the execution nulla bona. There was no evidence of any communications between the plaintiffs and defendant, except what appeared from the execution of the agreement.
A verdict was taken for the plaintiffs, subject to the opinion of the court on a case containing the facts above stated. It was agreed that if the court should be of opinion that the evidence was properly admitted, the verdict was to stand ; .that if any evidence had been improperly admitted, without which the plaintiffs could not have been entitled to a verdict, a new trial was to be granted; and if the court should be of opinion that the plaintiffs were not entitled to recover at all, a judgment of nonsuit was to be entered.
Baldwin, for the plaintiff,
p. 223there was also a forbearance for six months. There was then a valid and binding agreement on the part of Blanche, and that, according to the opinion of the court in Leonard v. Vredenburgh, was sufficient to bind the defendant. insisted, that the defendant was not bound by this agreement. He admitted that a sufficient consideration was stated in the plaintiffs’ declaration, but the paper produced did not support the declaration. The defendant could never bring an action on this memorandum against the plaintiffs. It did not contain a single stipulation on their part. There was no mutuality in the agreement. It is a contract on one side only. It is not under seal, nor is it signed by the plaintiffs. The defendant could not hold the plaintiffs responsible on this writing 1 neither could Blanche be made liable. If Blanche was not bound by the original agreement, the defendant clearly could not be held responsible on his guaranty. Parol proof was not admissible to supply the defect of a consideration. Every fact which it would have been necessary, before the statute of frauds, to prove by parol, in order to sustain the action, must now be shown to be in writing.
Slosson, contra,
delivered the opinion of the court. The guaranty on the part of the defendant in this case, was an original collateral agreement; and not a promise to pay a previously subsisting debt of Blanche.
It was part of an entire contract consisting of the agreement signed by Blanche, and the guaranty signed by the defendant. The credit was originally given to the defendant as surety; and it was therefore unnecessary to show a separate consideration for the promise of the defendant. The principal contract and guaranty were simultaneous, and the consideration of the former supports the latter. Leonard v. Vredenburgh, ( 8 Johns. Rep. 29 .) Hunt v. Adams, ( 5 Mass. Rep. 358 .)
I think there is a sufficient “ note or memorandum” of the whole agreement, including the consideration, stated in the written agreement to which the guaranty refers; but if no consideration had been expressed in the written agreement , it might be shown by parol proof, because it is only necessary here to prove a consideration for the principal agreement. In the case of Wain v. Warlters, (5 East, 10.) it was held that the considera
p. 224
tion as well as the promise must be in writing, in order to charge one man with the debt of another. But th~t was upon a promise to pay an independent previously existing debt of another person, and is plainly distinguishable from this case.
New trial refused.