16 N.Y.S. 567 | N.Y. Sup. Ct. | 1891
Lead Opinion
The referee found as facts the making of the note by Melvin A. Nash, indorsed by the plaintiff, and that before the indorsement Edwin B. Nasli requested the plaintiff to indorse the note, promising him that if he would do so he (Edwin) would pay the same when due if Melvin did not, that he would indemnify and hold the plaintiff unharmed on account thereof, and that, relying on said promise, plaintiff did then indorse said note. The appellants insist that this finding is not supported by the evidence. The only evidence in support of this finding is found in the testimony of Melvin A. Nash, and his testimony upon that subject is as follows: “I had a conversation with my father, Edwin B. Nash, at or about the date of the original note, a few days after. He told me he had asked Mr. Barnett to sign a note for me, or he would not have done it. He said he asked Mr. Barnett to sign the note, and if I did not pay it be would, or Barnett would not have signed it.” It is insisted by the appellants that this language does not, upon the most favorable construction or interpretation of it for the plaintiff, prove a promise by the testator to guaranty or indemnify the plaintiff, or keep him unharmed by signing or indorsing this note, and I am quite inclined to agree with that contention. It would certainly require a forced and unnatural construction of these words to give them the force of a contract of guaranty or indemnity against the legal consequence of signing or indorsing this note. The most that would fairly be claimed for the language used was an agreement of the decedent to pay this note if the maker failed to do so. There was nothing in the language to justify the conclusion that the testator intended to pay any other or future notes made by Melvin A. Nash, and indorsed by the plaintiff, upon the failure of the maker to pay; and if it could be held that an agreement by the testator to pay that note, if not paid by the maker, was in the nature of a guaranty that the indorser would not be called on to pay that note, still such a guaranty could not be made to extend to other and subsequent notes made by Melvin, and indorsed by the plaintiff, to which no reference was made by the decedent If, as matter of law, the statement of the deceased, proved to have been made, can be construed as evidence of a guaranty against the first note, still, within the well-settled rules of construction of guaranties, it could not be extended to other and subsequent notes not referred to in that statement, or in existence at that time. In the case of Bank v. Kaufmann, 93 N. Y. 281, the court says: “But when the meaning of the language used in. a guaranty is ascertained, the surety is entitled to the application of the strict rule of construction, and cannot be held beyond the precise terms of the contract.” Applying this rule, it is difficult to see how the defendants’ testator can be held, even by the most liberal interpretation of the words imputed to him, to have guarantied the plaintiff against the consequence of his indorsement of these renewal notes. A guarantor has a mht to prescribe the exact terms upon which he will enter into the obligation, and insist upon his' discharge, in case those terms are not observed. Barns v. Barrow, 61 N. Y. 39.
But it is further-insisted upon the part of the appellants that, in any aspect of this case, the promise claimed to have been made by the defendants’ testator was but a paroi collateral promise to answer for the debt, default, or miscarriage of another, and, not being in writing and subscribed by him, was void by the statute of frauds. If this position is true, then the plaintiff could not recover in this action, and the judgment should be reversed. It will be borne in mind that the only promise proved was that if Melvin A. Nash, the maker, did not pay the note, he, Edwin B. Nash, would. Melvin A. Nash was the maker of the note, and the principal debtor. John M. Barnett was the payee, and the person to whom, or to whose order, the payment was to be made. Edwin B. Nash agreed with the payee that if Melvin A. did not pay the note he would. If, therefore, he was liable on that agreement, it was as the guarantor that Melvin A. would pay the note. If Melvin A. had paid the
The respondent insists that, as between Barnett, to whom it is alleged the promise was made, and Edwin B. Hash, by whom it was made, it is not a •collateral, but a direct, promise, and that there was a sufficient consideration of harm to the promisee to take it out of the operation of the statute. In .■support of this theory, the respondent cites Mallory v. Gillett, 21 N. Y. 412; Tighe v. Morrison, 116 N. Y. 263, 22 N. E. Rep. 164; Leonard v. Vredenburg, 8 Johns. 29; Chapin v. Merrill, 4 Wend. 657; Emerson v. Slater, 22 How. 28; McCreary v. Van Hook, 35 Tex. 631; and Tisdale v. Morgan, 7 Hun, 583. In Mallory v. Gillett, supra, the plaintiff was in possession of a boat on which he had a lien for repairs, and the defendant promised by paroi that, if the plaintiff would surrender the boat to the owner, he would pay the ■charges, some of which he paid at the time. It was held to be an original, and not a collateral, promise, and not within the statute; and the reason for it seems to be that, though the debt of another may have been the original cause of the promise, yet, if the person to whom it is made relinquish some right or advantage which he possesses which might have enabled him to obtain satisfaction of his debt, the promise of a third person to pay the debt in consideration of such relinquishment is an original, and not a collateral, promise. Su such reason exists in the case at bar, and the cases are therefore clearly distinguishable upon principle. In Tighe v. Morrison, 116 N. Y. 263, 22 N. E. Rep. 164, the defendant applied to the plaintiff to sign an administrator's bond, claiming that lie had an interest in the estate, and that it was indebted to him, and upon his oral guaranty to save the plaintiff from loss he executed the bond. The principal in the bond defaulted, and plaintiff suffered loss. In an action on this guaranty it was held that the case was not within the statute; that the promise was an original one, and legally beneficial to the defendant only; and the court lay down what seems to be the real •distinction between a collateral and original undertaking, and hold that, to bring a promise within the statute, it must be made to persons entitled to enforce the liability assumed by the promisor. In this case the court says: “In order to attain a position which be represented would be of pecuniary
Landon, J., concurs.
Concurrence Opinion
(concurring.) The referee-finds that the testator or Ed— . win B. Nash verbally requested plaintiff to indorse an accommodation note-of Melvin A. Nash, in order to have it discounted at the bank, and promised him that if Melvin A. failed to pay he would pay, and would hold plaintiff harmless: that, relying upon that promise, plaintiff, on the 16th of May, 1888, indorsed a note to Melvin A. for $1,500; that this note was not paid, but was-renewed several times in the same form. On the trial the plaintiff called. Melvin A. as a witness, and then executed and delivered to him a general release, which specially released Melvin A. from any liability on account of paying the note or the existing renewal thereof. Without discussing the validity of the indemnity, I am of the opinion that Edwin B. was discharged--by the-renewals. If, as plaintiff claims, the testator’s liability became fixed when, the first note became payable, still the plaintiff extended the time by making a new note. After he had done this, if Edwin B.-had paid the plaintiff he could not have sued Melvin A. until the new note became payable. Melvin. A. bad then taken up the original note, and was no longer-liable thereon.. Edwin B, liad agreed to indemnify plaintiff for indorsing the first note, not-for indorsing numerous renewals thereof. He might be willing to take the-risk that Melvin A. would pay the first note, which came due August, 1888,. but not that be would pay, or would be liable to pay, a note which came due in March, 1890. Furthermore, I think that byreleasing, in open court, Melvin A. from all liability on the original note, and on. the existing renewals thereof, the plaintiff discharged the testator’s estate. Melvin A. was the principal debtor, and a release of the principal debtor is a discharge of the surety or guarantor. There was no longer anything to guaranty. This defense could not have been pleaded; the act took place on the trial. For these-reasons I concur in the result of my Brother Mayham’s opinion.
