Majority
p. 29Leonard against Vredenburgh.
Headnote
Where A. appHed to B, fot? B°n refused t0 lct hlrn have them witliOut.seComissory note for the amount, under which c. auty the above;” and the goods were thereup ibCwasheid to be a collateral undertaking of C ; hut that there was no nceessity for any distinct conside,-ation passing-B c. for l.-e^na”^ne“ delivery of the goods to A.-sup. ported the^pro-well as the prol that the words fthe recen'ed note were lufficient evidence of a con«deration on the face of the writing ¡ but if any parol evidence was admissible t0 show the eo¡l. or one en-°.r=sinal au<iTHIS was an action of assumpsit. The declaration contained the usual money counts, the common counts for goods sold and delivered, a count upon a promissory note, and a special count on the following instrument in writing : “ November 9, 1808. For value received, I promise to pay Norman Leonard five hundred dollars, in r J • sixty days from date, per me, Moses Johnson. “ I guaranty the above. Win. I. Vredenburgh." Plea, non ° , assumpsit. '
The cause was tried at the Onondaga circuit, before the Chief Justice, on the 5th June, 1810.
At the trial, the plaintiff proved goods sold and delivered to the defendant, to the amount of 120 dollars and 16 cents. He then offered to prove the written contract above stated, and that Moses Johnson applied to him for the goods for which that contract was given, on a credit, but the plaintiff refused to let him have the goods, with-1 u out a previous security for the payment", upon which Johnson and the defendant framed and subscribed the contract, as above stated, and presented the same to the plaintiff, who thereupon delivered the goods, to the amount of five hundred dollars. The plaintiff further offered to prove that the defendant, since the delivery of the last-mentioned goods, had frequently promised the plaintiff to pay for them, and that Moses Johnson was insolvent when the goods were delivered, and has since continued to be insolvent; and that the defendant was and is secured by Johnson with property, to the amount of one thousand dollars, as an indemnity to him for having signed the contract above mentioned. This evidence was objected to, and overrSled by the Chief Justice. And the jury, under his direction, found a verdict for the plaintiff, for the amount^ only of the goods
p. 301. The defendant’s undertaking was original, and not within the statute of frauds. The rule Iaid down in Matson v. Wharham,[23] “ that if the Person f°r whose use the goods are furnished be liable at all, any other promise by a third person to pay that debt must be in writing, otherwise it is within the statute of frauds,” is not the true rule. In Houlditch and others v. Milne,[24] which was an action of assumpsit for the repair of a carriage, which be]onge¿ to one Copsey, and the bill was made out against him, but before the carriage was delivered, the defendant promised to pay for the repairs, upon which the carriage was delivered ; Lord Eldon said, “ In general cases, to make a person liable, for goods delivered to another, there must be an original undertaking by him, so that the credit was given solely to him, or there must be a luutract in writing. There might be cases, however, where the rule did not apply.” “The plaintiffs had, to a certain extent, a lien upon the carriage, which they parted with, on the defendant’s promise to pay; that, he thought, took the case out of the statute, and made the defendant liable.” In the case of Williams v. Leper,[25] the defendant was . . , in possession of certain goods, the property of one Taylor, a tenant of the plaintiff; and the landlord coming to distrain, the defendant undertook to pay the plaintiff the rent in arrear, if he would desist from distraining. This was held to be an original undertaking, and not within the statute of frauds. The principle to bé-extracted from the cases decided, seems to be this; that if the property, whether a hen or absolute ownership, be parted with, on the faith and
proved to have been delivered to the defendant, beii/g 120 dollars and 16 cents.
A motion was made to set aside the verdict and for & new trial, for the misdirection of the judge.
Sill, for the plaintiff.
p. 31credit of the defendant’s undertaking, it is an original contract, and need not be in writing. Some difficulty has arisen in determining whether the contract is original ox collateral; but this depends on the question, to whom was the credit given ? 2. If we are correct, as to the first point, that the true ■Criterion to determine whether the contract was original or collateral, is to ascertain to -whom the credit was given, then the plaintiff should have been permitted to ■have .shown that fact, it being consistent with the written instrument. In support of a written contract you may show, by parol, any consideration not contradicting the one expressed in writing; and where no consideration is expressed, jt may be supplied by parol proof.[23] So the reason and occasion of making a written contract may be shown by parol.† We contend, then-, that the plaintiff might show that the consideration of the agreement of the defendant, was the sale of goods on his credit alone, and the occasion of executing the instrument. 3. The consideration of a promise to pay the debt of another need not be in writing. The first case on this subject is that of Wain and others v. Warlters,[25] in which it was held, not only that . . ... 1 the consideration must be m writing, but that the agree- , , , . , . rn, . , ment must be signed by both parties. 1 ins case has not ■n binding force or authority here, and it has been denied
There is nothing on the face of the instrument that militates against the alleged fact,1 that credit was given solely to the defendant. The name of jfohnson might have been used, at the request of the defendant, to show that the former was liable to refund the money, if paid by the defendant. This form of the instrument might have been chosen, as the shortest and most convenient mode of security for the defendant; or it might have been adopted for the purpose of fraud.
p. 32In Sears v. Brink and another,[20] in this court, the plaintiff had before sold land to Newkirk, and the defendants agreed to take his place, and pay to the plaintiff
to be law in England. In ex parte Minet,[23] there . was a guarantee for the repayment of money lent to a third person, and Lord Eldon, in answer to the case of Wain v. Warlters, which had been cited by the counsel, to show that the consideration ought to have been stated, as part of the agreement, said, “ There is a variety of authorities, directly contradicting the case in the court of K. B. which is a most important case, with reference to the consequences ; for the undertaking of one man for the debt of another, does not. require a consideration moving between them.” And Mr. Roberts, in his treatise on the statute of frauds,[24] speaking of the case of Wain v. Warlters, says : “ According to this doctrine, under that section of the statute, both parties, in most cases, must sign the instrument, otherwise the full consideration for the signing by the party charged will not appear upon the instrument itself; a doctrine rising greatly above the level of antecedent opinions and authorities.’* That case certainly subverts the principle of former adjudged cases,[25] in which it has been decided that a letter written by the seller of a real estate, a memorandum signed only by the party to be charged, a letter referring for the terms of the contract to a paper in the possession of the defendant, but not signed, were sufficient within the statute.
In Wallace v. Barker,[19] in error, decided in the supreme court of Pennsylvania, Wallace guarantied to Barker, that a certain house should be sold and bring 8,000 dollars, and the difference between 6,000 dollars and that sum should be paid to- him ; the house having sold for less than"8,000 dollars, the defendant below objected that the agreement was within the statute of frauds.,' there being no consideration expressed; but this objection was overruled.
p. 33In Bailey & Bogert v. Freeman.[24] there was a demurer to the declaration; and the court decided it on the ground that no consideration for the promise was stated, Which was essential in every action on a promise. The reason of the thing, and the sound construction of the statute, are against the decision in Wain v. Warlters. A note or memorandum can mean nothing more than a general outline of the contract, not a complete and perfect contract; and the statute is complied with, though no consideration is expressed. This is confirmed by the observation of Lord Eldon, that no consideration passes between the person who undertakes to pay the debt of another and the creditor. It would be very unreasonable to require a consideration to be expressed, when, in fact, there is no consideration. It is sufficient that the agreement, which is to guaranty the debt of another, should be in writing. It is on this ground that part performance is held by courts of equity, to take a case out of the statute. 4. The defendant being secured, a subsequent promise by him to pay is binding. . Though there is a written contract relative to the subject, parol evidence of a subsequent promise is admissible, if it does not contradict the writing.[25] A parol promise collateral to a written agreement is binding.[19] A promise by a person who has property of the debtor in his
the balance due for the land: The counsel for the defendant expressly said, “ that it was not an agreement for the debt of another and if any thing, it was a contract for the purchase of land. The case is substantial only on the ground of Newkirk’s not having signed contract, so as to bind his interest in the land, or, perhaps, the failure of title in Sears. A contract of buying and selling implies, on the face of it,[23] a consideration, and the sum which Newkirk was to pay was referred to, merely to fix the defendant’s liability, and not as being the debt of Newkirk.
p. 34hands, to pay the amount to the creditor, is valid.[23] A government agent having funds in his hands, is liable on his promise to pay for goods furnished.[24] So an executor, having assets, is liable on an- express promise to pay a debt.[25] There are two questions to be discuss-* ed; 1. Whether this was an original or collateral undertaking on the part of the defendant; 2. If collateral, whether there is a sufficient, writing to take it out of the statute of frauds. 1. In order to determine whether this was a collateral undertaking or not, it must be tested by the rule laid down by Justice Butter, in the case of Matson v. Wharham,[19] in which all the cases were examined, and the doctrine on the subject fully and clearly established. If the. defendant comes only in aid of the person who obtains the goods, so that there is a remedy against both, according to their distinct engagements, then the undertaking is collateral. Johnson, who purchased the goods, gave his note for them, on which he is clearly liable. The plaintiff has his remedy against him. The case of Jones v. Cooper,[20] as stated by Justice Buller, in Matson v. Wharham, was where a person going abroad requested a baker to supply his mother-in-law with bread during his absence, and he would see him paid. This was held by the whole court of K. B. to be a collateral undertaking. These cases are much stronger than the one before the court; and it makes no difference whether the promise is made before or after the delivery of the goods. The point is whether the party benefited by the promise is liable at all; if he is liable, then the promise is collateral.[21] In the case of Williams v. Leper, and Houlditch and others v. Milne, which have been cited, a lien was given up, on the promise of a third person, which made it an original undertaking, In Keate v. Temple,[22] a new trial
Sudani, contra.
p. 35was granted, because the court were of opinion that there Was no reasonable ground to suppose that the credit was given to the lieutenant of the ship. 2. Then taking this to be a collateral undertaking, must not the whole agreement, which includes the consi deration of the promise, be in writing ? The case of Sears v. Brink was the first decision, in our courts, on this point; though it had been before settled in England. In Bailey & Bogert v. Freeman, the court confirmed the principle of the decision in Sears v. Brink. The chancery decisions are of no authority. Cases of part performance, or as to the execution of a parol agreement admitted by the party, are not admitted or discussed at law. And Lord Loughborough, in Rondeau v. Wyatt,[23] expressed his disapprobation of the laxity introduced into the court of chancery, in regard to the statute of frauds. And in Whitchurch v. Bevis,[24] Lord Thurlow struggled hard against the doctrine before held in some of the chancery cases. In the very able opinion delivered by Lord Chief Baron Skynner, in the house of lords, in the case of Rann v. Hughes,[25] it is laid down as clear and established law, that no agreement, whether in writing or not, unless a specialty, could be maintained, without a sufficient consideration was shown ; that a nudum pactum might exist, whatever might be the rule of the civil law, in writing, as well as without writing. It is the established and invariable mode of expression used by all the writers in their readings on the statute of frauds, that the statute has not altered the common law, but that it has merely prescribed a new mode of proof: that is, theparol proof which was requisite to support the action must now be produced in xvriting, at the trial. It is on this ground that the court, after verdict, will presume the promise stated in the declaration to have been in writing. Admitting, says Baron Skynner, in Rann v. Hughes, all that is stated in the declaration to have been reduced to writing, and so proved, it does not help the promise,
p. 36for there must be a consideration, in addition ; and in that case, all the judges concurred with him in the opinion, that there was not a sufficient consideration to support the demand, and its being supposed to be in writing made no difference. Could the plaintiff, before the statute, have recovered against the defendant, on proving-merely a guaranty in writing, without the additional facts offered to be proved by parol l Certainly not. It. follows, then, according to the authorities cited, that to. entitle him to recover now, he must prove those facts, or a consideration, in writing. Suppose an account stated with an executor, and at the bottom of the account, he writes, “ I promise to pay the above 250 pounds,” is the executor to be charged out of his own estate, if the plaintiff can prove at the trial, by farol, that the written promise was in consideration of "a forbearance to sue for six months ? Is not the forbear anee the agreement on which the promise is founded ? And is there not as much danger of perjury in proving the consideration, as the promise ? If a consideration is essential to an agreement, and that may be proved by parol, why cannot the plaintiff recover, for the same reason, where the consideration is in writing, and the promise is § to the observation of Lord Eldon, in the case ex parte Minet, that “ the undertaking of one man for the debt of another does not require a consideration moving between themif his lordship meant, that as between the original debtor and the person making the promise, there need be no consideration, he was, no doubt, correct; for that is what no person has ever pretended ; but if lie meant to say, that a promise to pay the debt of another, without consideration, was good, then, he is contradicted, not only by a “ variety of cases,” but by every case on the subject. But the case then before his lordship did not come within the statute, and might be supported, without subverting the decision of the court of K. B. in Wain v. Warlters ; for there was a sufficient considera
p. 37tion expressed, namely, receiving one month’s notice • • j - | • e in writing. The court are not to say what the constderation must be; for if any consideration appear on the face of the contract, though it may not have been the only 0 . . inducement to the promise, yet it may be sufficient to support the undertaking.
delivered the opinion of the court. The testimony offered at the trial was rejected, because the consideration for the promise was not stated in the writing produced. The case appeared to me then to be governed by the decision in Wain v. Warlters, (5 East, 10.) which was recognised by this court, in Sears v. Brinks; (3. Johns. Rep. 210.) but upon better rejection, I now think that the plaintiff ought to have recovered upon that contract.
There is no doubt that this was a collateral undertaking, within the purview of the statute of frauds; for Johnson’s note is conclusive proof that credit was given to - him, and that he was liable to the plaintiff. If the whole credit is not given to the person who comes in to answer for another, his undertaking is collateral. (6 Mod. 249. 2 Term Rep. 80.)
I have not been altogether satisfied with the decisions referred to, but it appears to me, that the p^eent ivx.»'« s n;;"»s hi determined in favour vf tie plaintiff, ■u'fV on* disturbing them $ a«d, pe»* zqpo, the examination w Mdt Ü may give to As caaec upon the stavj.ue of frauds, trayp 'help to ilInt.íTfaíe fíie t easonabi'-.'ness cf those rW-bgo Hi we atimlc the origin of tfco contract, to be ouch :vi the plaintiff ori.iecl to show,, ibi-t’e rten ho nece^ohy foe, aoif was tiiíTO, in feet, any ooivzzderatbia pasr-lng eisecotiiy between the plaintiff anddefendarit, and, of course, none was to be proved. It was all one original and entire transaction, and the sale and delivery of the goods to Johnson, supported the promise of the defendant, as well as the promise of Johnson. If the contract between
p. 38
Johnson and the plaintiff had been executed and perfect ly past, before the defendant was applied to, so that his pr0mise could not connect itself with the original communication, then the case would have been very different, and the undertaking of the defendant would have-required a distinct consideration. A mere naked promise to pay the already existing debt of another, without any consideration, is void. But in the present case, (as the plaintiff offered to show,) the promise was made at the time of the original negotiation between the plaintiff and Johnson. It was incorporated with that contract, and I became an essential branch of it. The whole was one single bargain, and the want of consideration, as between the plaintiff and defendant, cannot be alleged. If there was a consideration for the entire agreement, (and Johnson’s note purporting to be given for value received, was evidence of it,) that consideration was the aliment for the defendant’s promise. This is the amount of the doctrine in Kirkby v. Coles; (Cro. Eliz. 137.) and it is alluded to in Tomlinson v. Gill, (Amb. 330.) and Williams v. Leper ; (3. Burr. 1886.) and to this extent I can understand the observation of Lord Eldon, (14 Vesey 190.) when he observes, that, “ the undertaking of one man for the debt of 'Another, does not require a consideration moving between them.” In Wain v. Warlters, promke of t ;he d'-l fenrJard y u'/ f ~~de. at the ÜÍU' dUl >■ AOy;r¿ Y Í !. d tí a ’ oviq r . bi.tWCir (hst Ikor vrd die third rsoza. ■i Í >f. ma-'h.- ionr> ■id-v>,-W ' ¡N-tÓ } r» vr ' -Yd y!, ¿"Y'iiÜ U dp -Vi. e , r.i that ee- G'Jr, Í11( v'vcnrdñe .veer; ; move to sr.ppoít at q »s at s.-rr -V ’ ' ; „ ddbllky . of ,Ly - persov for y deiUíávArilí' 7 q do VhAi fq ,q ¡done. y/ouíi.1 L¡íV o left me promise a nude pact. It required, at least, the consideration of forbearance, or some other consideration, arising out of, and founded upon the original lianiility. The same remark applies to the case of Sears v. Brink. But if a promise to pay the debt of another
p. 39
be founded on a new and distinct consideration, independent of the debt, and one moving between the parties to the new promise, it is not a case within the statute. It is considered in the light of an original promise. The eases of Tomlinson v. Gill, and Williams v. Leper, proceed upon this distinction, and the point is too clearly settled to be questioned, (Roberts on Frauds, 232 to 237.)
There are, then, three distinct classes of cases on this subject, which require to be discriminated ; 1. Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit givprtq the principal or direct debtor. Here, as we haye'already seen, is not, nor need be, any other consideration, than that moving between the creditor and original debtor. 2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liabilijj^ is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attachto this subsequent promise. The cases of Fish v. Hutchinson, (2 Wils. 94.) of Charter v. Beckett, (7 Term Rep. 201.) and of Wain v. Warlters, are samples of this class of cases. 3. A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.
The two first classes of cases are within the statute of frauds, but the last is not. (1 Saund. 211. note 2.) The case before us belongs to the first class; and if there was no consideration other than the original transaction, the plaintiff ought to have been permitted to show that fact, if necessary, by parol proof; and the
p. 40
decision in Wain v. Warlters did not stand in the ways . . The whole agreement between the plaintiff and defend-anti consisted in the promise to guaranty the debt of Johnson. To say that the promise is void, for want of ... . disclosing a consideration, is assuming what the plaintiff offered to show ought not to be assumed, for there was no distinct consideration passing between the plaintiff and the defendant. Johnson’s note given for value received, and, of course, importing a consideration on its face, was all the consideration requisite to be shown. The paper disclosed that the defendant guarantied this debt of Johnson; and if it was all one transaction, the value received was evidence of a consideration embracing both the promises. The writing imported, upon the face of it, one original and entire transaction; for a guaranty of a contract implies, ex vi termini, that it was a concurrent act, and part of the original agreement. In Stadt v. Lili, (9 East, 348.) the defendant gave a guaranty in this form: “ I guaranty the payment of any goods which Stadt delivers to Nichols ;” and the K. B. held that “ the stipulated delivery of the goods to Nichols was a consideration appearing on the face of the writing, and when the delivery took place the consideration attached.” The writing in the present case was of equivalent import and effect. Instead of saying that he guarantied the payment of goods delivered to Johnson, the defendant guarantied the payment of the value received by Johnson.
Upon the whole, we think that the plaintiff was entitled to recover, upon production and proof of the writing. But if there was any doubt upon the face of the paper, f whether the promise of Johnson and that of the defendant Were or were not concurrent, and one and the same com» munication, the parol proof was admissible to show that fact.
A new trial ought, therefore, to be awarded, With costs-to abide* the event.
New trial granted..