Waterbury v. Graham — 6 N.Y. Super. Ct. 215

Majority

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Waterbury v. Graham. The Same v. The Same.

Headnote

A letter written by the defendant to G., stating that if the owner of a specified house will let it to G. at a rent named, he will become security for G., and directing G. to state the same and to send the papers to the writer for execution, enures to the benefit of the owner on his demising the house to G. on the faith of the letter, at the terms specified; and he can maintain an action upon the promise, on the defendant’s refusing to execute the proper security.

The letter expresses on its face, a sufficient consideration to sustain the promise within the statute of frauds.

The fact that the owner, after he has leased the house to G. on the credit of tlie letter, required of the defendant to execute a covenant containing more than the security for the rent, does not discharge the latter from his liability. The defendant’s contract made by the letter is entire. It is not to pay the rent quarterly, as it falls due, but to execute an obligation to that effect.

Hence one suit and recovery on the contract is a bar to any subsequent suit thereon.

Held, accordingly, on the trial of the first suit brought, the second suit founded on a subsequent default of the tenant in paying rent having been first tried and a judgment entered therein; and this, although the claim and judgment in the second suit were not for the same rent claimed in the first.

(Before Duer and Mason, J. J.)

Nov. 23, 1850.

On tbe 16tb of January, 1847, Waterbury commenced a suit in tbe supreme court against Grabam, to recover $250, being one quarter’s rent due November 1st, 1846, for tbe bouse No. 258 Broadway, in tbe city of New York, on tbe ground that Waterbury bad let tbe same to James D. Gardner on Graham’s agreement to become security for tbe rent. The declaration contained several counts like those next mentioned, except that they were for tbe rent of a different quarter of tbe year. Tbe defendant pleaded tbe general issue.

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On the 16th of June, 1847, Waterbury commenced another suit against Graham in the same court. The first count of the declaration set forth that Graham, in consideration that the plaintiff would demise to J. D. Gardner the house 258 Broadway for such reasonable time as' Gardner- wanted to hire it, promised that upon such demise being made, he would become security for the payment .of the rent by Gardner to the plaintiff during the term, to the extent of the rent of $1000 per annum, and would execute any necessary contract of security for such payment. That the plaintiff demised the house to Gardner on the faith of the promise, for the term from February 23d, 1846, to May 1st, 1847, at the yearly rent of $1000, payable quarterly, and Gardner entered and was possessed, &c. That notice of the demise was given to the defendant, and a contract of security was presented to him for his signature, which he refused to execute. That Gardner continued in possession till May 1st, 1847, and that $500 for the rent during the preceding six months was still due from him. The second count was on a promise to pay the rent, and a like breach. A third count was similar to the first. The fourth and fifth counts were for use and occupation by the defendant. The defendant pleaded the general issue. The second suit was tried first, in September, 1847, before Edwards, J. On the trial, the plaintiff proved, that on the faith of the following letter, written by the defendant, and presented to him by Gardner and his wife soon after its date, he demised to Gardner, by a lease under seal, executed February 18th, 1846, the premises, for the term and at the rent described in the declaration. The letter was in these words:

“Catskill, February 6, 1846.

“ Dear Sister, — Your letter, dated the 4th, was this morning received. You say you can have a house, corner of Broadway and Warren streets, for one thousand dollars a year, &c., if you can get security. I think you will do well to take it, and I assure you I will become security with pleasure, or do any thing I can for you, when there is a prospect of your getting along with it.

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“You can therefore say, that I will become security for Mr. Gardner, and can either send up the papers for me to sign, or he can retain this letter, until I go to New York, as I shall probably, as soon as the river opens, as security for the house.

“ Yours affectionately,

■ “JAMES H. A. GRAHAM.”

(Indorsed,)

“Mr. Jas.'D. Gardner,

“ No. 9 State-street,

“New York.”

(Postmark,)

“ Catskill, N. Y., Eeb. 6.”

Gardner went into possession February 23d, 1846, and occupied till the end of the lease. It was proved that in April, 1846, the plaintiff requested the defendant to execute a covenant indorsed on the lease, to the effect that he would pay the rent on Gardner’s default, and all damages that might arise from non-performance of Gardner’s covenants in the lease. The latter extended to various matters besides the rent, such as replacing furniture and the like. The defendant refused to execute the covenant. In November, 1846, the request was renewed, and ‘on defendant’s refusing, the plaintiff asked him if he would sign it provided the clause as to the furniture, &c., were stricken out. The defendant replied that he would not. He admitted he wrote the letter in reference to the house 258 Broadway. It was proved this house was one door below Warren-street, but the entrance to it was from Warren-street, across the lot at the corner.

The jury found a verdict for thé plaintiff in the second suit for $257.80. Various exceptions were taken by the defendant at the trial, and he moved for a new trial on a case. Some other matters were litigated before the jury, which are unimportant here.

The suit first commenced was brought to trial before H. Gray, J., in December, 1847. The evidence for the plaintiff was like that on the trial of the second suit, and the record of the judg

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ment in that suit was produced and read in evidence by the plaintiff. After the plaintiff rested, the defendant’s counsel moved for a nonsuit, for the reason, among others, that the contract of the defendant was entire, and the plaintiff having recov. ered for a breach of it, was not entitled to maintain this action. The judge nonsuited the plaintiff, who made a bill of exceptions and moved for a new trial.

Both causes having been transferred to this court, were argued at the same time.

A B. Blunt, for the'plaintiff.

S. Sherwood, for the defendant.

By the Court.

I. As to the defendant’s motion for a new trial, it is unnecessary to decide whether the defendant’s letter of the 6th February, 1816, had been sufficiently proved, when the motion for a nonsuit was made, as all doubt on that subject was afterwards removed by the testimony of Mrs. Gardner.

The object of the defendant in writing the letter was to enable Mr. Gardner to hire the house on the faith of his promise to become security for tbe rent. Although, therefore, it was not directed to the plaintiff, but to Mrs. Gardner, yet its object could not be accomplished, unless it was shown to him. She was justified, then, in showing the letter to the plaintiff, and when in reliance upon it be let tbe bouse, the promise contained in it enured to his benefit.

There was.also a sufficient consideration expressed on its face. After adverting in it to what Mrs. Gardner had previously written, to wit, that she could have the house for $1000 a year, if she could get security, the defendant says, “You can, therefore, say that I will become security for Mr. Gardner,” &c. It was a promise to become security, on condition that the plaintiff would let the house for that rent. The letting was in terms the consideration for the promise, which became binding on the defendant as soon as the plaintiff, in reliance upon it, let the house.

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Whether the plaintiff did in fact let the house on the faith of the defendant’s promise, and whether the house answered the description in the letter, were points on which there was sufficient evidence to go to the jury.

The principal question in the cause is, whether the defendant was subsequently discharged from his promise by the plaintiff insisting upon the defendant’s guaranteeing him against damage to the furniture as well as for the rent. The defendant clearly was not bound to enter into any such covenant with regard to the furniture. He had agreed to be responsible for the rent to the extent of $1000 per year, and nothing more. The plaintiff had acted on that agreement, and on the faith of it, as the jury ha've found, delivered possession of the premises to Gardner, and we are not aware of any principle of law by which the defendant could be absolved from an agreement thus made by him, and acted upon by the plaintiff, merely because the plaintiff wished him to add to his responsibility. The contract which he actually made was not, and in our judgment, could not be annulled or discharged, solely on the ground that the plaintiff asked for something more. If the defendant’s letter had not’ been acted upon by the plaintiff, and he had insisted on the indemnity respecting the furniture previous to delivering possession of the house, the defendant probably would not have been bound. The plaintiff’s conduct, in that case, might have been evidence that the minds of the parties had not met as to the terms of the security, and that there was no valid agreement between them. Or if it had appeared that the plaintiff had not agreed to strike out the clause respecting the furniture until after Gardner had made default in payment of the rent, his delay and neglect might have been evidence to show, that on the defendant’s refusal to sign the paper as presented, the plaintiff had concluded to waive his security for the rent, and the defendant would in such case have been discharged. But the facts are otherwise. The plaintiff let the house on the faith of the defendant’s engagement to become security for the rent, and he agreed to strike out the objectionable clause, before any default had occurred on the part of Gardner. We think that the

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defendant, under these circumstances, was bound to sign the covenant of suretyship if drawn in conformity with the promise contained in the letter, and that upon his refusal to sign, when the plaintiff offered to make it so conform, he was liable in this action for all damages which the plaintiff had sustained by reason of such refusal.

The jury have found that the house answered the description contained in the defendant’s letter, and that it was let to Gardner and possession delivered, on the faith of that letter, •and we see no reason to disturb the finding.

The defendant’s motion for a new trial must therefore be denied.

II. Next, as to the plaintiff’s bill of exceptions, in the suit first commenced, and which was the last tried.

We have just decided’in the other suit between these parties, brought on the same letter which is the foundation of the present suit, that the offer contained in the letter to become security for the rent, having been accepted and acted upon by the plaintiff, was obligatory on the defendant, and that the plaintiff was entitled to recover all such damages as he had sustained by reason of the defendant’s refusal to comply with his agreement. The contract was in its nature entire. It was not a contract to pay the rent, as from time to time it should become due, but to execute an obligation to that effect,’ and the suit just decided was maintainable only on the ground of the defendant’s refusal to execute such an obligation, and not on the ground of non-payment of the rent. The two causes of action are entirely distinct, and they were so treated by the pleader in the former suit as well as in this, the declaration in both containing counts suited to each aspect of the case. The contract being entire, the remedy for its breach is also entire, and the recovery therefore in the former suit, is a bar to a recovery in this. Eor this reason, without entering into a discussion of the other grounds taken by the judge, we think the nonsuit was properly granted, and the motion to set it aside must therefore be denied.