Hayes v. Hood — 32 N.Y. St. Rep. 28

Majority

p. 28

Frank M. Hayes, Receiver of the First National Bank of Auburn, N. Y., Pl’ff, v. Mary E. Hood, Def't.

(Supreme Court, General Term, Fifth Department

Filed June 19, 1890.)

Headnote

1. Guaranty — Consideration.

Defendant executed to the hank, of which plaintiff is receiver, an instrument hy which for value received she guaranteed the payment to it of all liability to it, then or thereafter, of her husband or his firm. In an action on the guaranty, the defense was that it was executed without consideration, and defendant's husband testified that his firm did not have any ■notes discounted or receive any money or notes from the bank on the day the guaranty was executed, held, that this was not sufficient to overcome the presuihption of consideration arising from the words of the guaranty “ for value received;” that it was necessary for defendant to show that there was no consideration at the time of its execution, or prior or subsequent thereto, which would support the promise.

3. Same.

A promise by a bank that notes held by it should be renewed as they fall due is amply sufficient to support such a guaranty, provided the same was carried into effect.

p. 29

Motion by defendant for a new trial on a case and exceptions ordered to be heard at the general term in the first instance upon a verdict of the jury directed by the court at the Cayuga circuit in October, 1889.

_E G Ailcen, for def’t; M. H. Briggs, for pl’ff.

This action is upon a written guaranty executed by the defendant in the following words: “Auburn, ÍST. Y., December 15, 1885. For value received, I hereby guarantee the payment to the First Mational Bank of Auburn, of all debts and liabilities to it, now and hereafter, of Peter Hood and son, and Peter Hood, of every name and nature, whether as principal, surety or otherwise, and I hereby charge my separate estate with the payment as above.”

The defense to a recovery upon this instrument is, that the same was executed without consideration. At the close of the evidence, the counsel for the defendant asked to go to the jury upon the question of such consideration, which was denied him, and an exception was duly taken. The words in this guaranty “ for value received,” are sufficient prima facie evidence of a consideration. Quimby v. Morrill, 47 Me., 470 . It was incumbent, therefore, upon the defendant to defeat the case so made by the production of the instrument itself by affirmative evidence if any existed. The evidence relied upon for that purpose is the testimony of Peter Hood, the husband of the defendant, the only part of which bearing upon this question is to the effect that the firm of P. Hood & Son did not have discounted at the bank of which the plaintiff is the receiver any notes on December 15, 1885, the date of this written guaranty, nor did they or either of them receive any money or note from the bank on that day. This evidence is not sufficient to overcome the written instrument, for it merely shows that on the day of the date of the guaranty no consideration, of the kind mentioned by the witness, was received by any party. But this was not enough. It. was necessary for the defendant to show that there was no consideration, either at the time of the execution of the instrument, or prior, or subsequent thereto, which would support the promise The absence from the witness stand of. the defendant herself is doubtless, in this instance, of not much importance on this question, because her business was conducted almost entirely by Peter Hood as her agent But the witness relied upon fails to say that there was no consideration for the guaranty, nor does he relate facts for the consideration of a jury fiom which such a conclusion could be intelligently derived.

Though this action is brought, not upon the promissory notes outstanding at the time of the execution of the guaranty, but upon those that were executed subsequently in renewal of the previous notes, yet the case discloses, with reasonable certainty, the fact that the guaranty was asked for and given with the understanding on the part of the cashier of the bank and of Peter Hood, that the several notes should be renewed from time to time as they should fall due. Such a promise would be amply sufficient to support the guaranty provided the same, as was done in this case, was actually earned into effect Beckwith v. Brackett,

p. 30

97 N. Y., 52 ; Maclaren v. Percival, 102 id., 675 ; 1 N. Y. State Rep., 660.

On the whole we are of the opinion that there was no question of fact for the jury, and that the verdict was properly directed by the court

The motion for a new trial should be denied, with costs, and judgment ordered for the plaintiff on the verdict.

,Dwtg-ht, P. J., and Coblett, J., concur.