Marston v. French — 43 N.Y. St. Rep. 538

Majority

p. 538

Richard Marston, Resp’t, v. Mart F. French, App’lt.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

1. Guaranty—Requisites of.

A contract of guaranty, to fie valid, must still exhibit on its face the parties, the promise and the consideration. - These elements need not all appear in a single paper, but when the relation of several papers is apparent by intrinsic reference paroi evidence is receivable to identify the paper referred to.

2. Same—Consideration.

A contract already executed, without more, affords no consideration for a subsequent promise of guaranty.

3. Same.

A contract of guaranty recited the making of certain contracts and the-, guarantor agreed to secure or accept “the above.” Held, insufficient, as it failed to show for whom the guaranty was made.

p. 539

Appeal from judgment of a district court, in actions on an alleged guaranty.

Samuel Hyman, for app’lt; William Arrowsmith, for resp’t.

actions are brought by plaintiff as assignee, upon an alleged guaranty of defendant; and the fundamental question is, whether the guaranty be valid and enforceable.

It is a mistake to suppose that, since the act of 1863, a contract of guaranty need not express the consideration. The rule is conclusively settled otherwise by the court of appeals, Barney v. Forbes, 118 N. Y., 580 , 585; 29 St. Rep., 980 ; Drake v. Seaman, 97 N. Y., 230 ; and it is still the law of New York that a contract of guaranty, to be valid, must exhibit on its face the parties, the promise and the consideration. True, these essential elements of the agreement need not all appear in a single paper; yet, paroi evidence is not admissible to connect several papers, but their relation must be seen by intrinsic reference. When such relation is so apparent, paroi evidence is receivable to identify the paper referred to.. These propositions are elementary.

Defendant’s guaranty to Brown recites that, “ Whereas, I, Alexander Brown and Chester Phillips Smith, have made and entered into various contracts,” etc.; and this is the only expression of consideration to be collected from the paper. But the expressed consideration is manifestly no consideration in law; for, “ a bygone consideration, unless supported by a request, will not sustain a subsequent promise.” Tindal, C. J., Thornton v. Jenyns, 1 M. & Gr., 188; Hunt v. Bate, Dyer, 272. A contract already executed, without more, affords no consideration for a subsequent promise of guaranty.

But as to the other contracts assigned to the plaintiff, namely, those of Palmoni, Clifford, Knott and Leiden, it is said that each of them is secured by another and peculiar guaranty. These contracts contain reciprocal obligations between the parties, mutual stipulations; and the defendant promises merely to secure or accept “the above.” Now, whose engagements does she thereby agree to guaranty? For which of the parties is she a surety? The contract of guaranty must exhibit ex facie the contracting parties. Mentz v. Newwitter, 122 N. Y., 491 ; 34 St. Rep., 207 . Here Mrs. French appears as the guarantor, but who the guarantee is the paper does not disclose. It is equally- consistent with its terms that she guaranteed the engagements of both parties, or of the party of the first part, or of the party of the second part.' “ It is indispensable that the written memorandum should show not only who is the person to be charged, but also who is the party in whose favor he is to be charged.” Benjamin on Sales, §§ 234, 238; 122 N. Y., 495 ; 34 St. Rep., 207 .

Appellant presents other grave exceptions to the judgments, but the error indicated being radical, it is unnecessary to consider them.

Judgments reversed and new trials granted, costs to abide event.

Bookstaver and Bischoff, JJ., concur.