64 N.Y.S. 144 | N.Y. App. Div. | 1900
The terms of the instrument upon which this action is brought are as follows:
“I guarantee the ‘Hew account’ of Hr. W. C. Gilbert, my husband, with Messrs. Abaye, Yison Bimar & Co., amounting to this date to one hundred and twenty thousand francs, representing the disbursements made by the firm of Abaye, Yison Bimar & Co. since the first day of January, one thousand eight hundred and ninety-one.
“ It is well understood :
“ 1. That all the profits obtained from Mr. Gilbert’s business from and after this day shall be applied to the discharge of this account.
“ 2. That, in case of the death of Mr. Gilbert, Messrs. Abaye, Yison Bimar & Co., who are to collect his life insurance, will discharge me completely from the present guaranty.
“ 3. In case that, contrary to the expectation of Mr. Gilbert, he should not be able to pay off this account between now and the end of December, 1896, and should oblige you to require the execution of this guaranty, I shall only be able to acquit myself towards you by paying you one-half of my income, amounting to six thousand francs a year, not possessing any capital of which I can dispose. I will, therefore, require the necessary and proportionate delay.
“ Made at Paris, the fourteenth day of January, one thousand eight hundred and ninety-five.
“(Signed) M. GILBERT.
“ I authorize the above.
“(Signed) W. C. Gilbert.”
The plaintiffs sue as assignees of the firm of Abaye, Yison Bimar & Co., mentioned in the guaranty, alleging a transfer to them of all the right, title, interest and cause of action in and to the new account therein mentioned, and all sums of money due aud owing from the said W. C. Gilbert therein named to the said firm of Abaye, Yison Bimar & Co.
In the court below it was held that the instrument sued upon, being a promise to pay the existing debt of another, was void on its face, because no consideration was expressed in the paper itself, and none could be spelled out or implied from any of its provisions. In the case of a written guaranty given by a third party to a cred
These authorities, then, would sustain the position of the appellants, if we could find in the instrument in question any evidence of the existence of a legal consideration in the shape of an agreement to forbear the enforcement of payment as against the principal debtor. This, however, we are unable to discover. There was nothing in the guaranty which prevented the promisees from suing Mr. Gilbert immediately. The terms of the instrument did preclude them from enforcing the guaranty as against Mrs. Gilbert until the end of December, 1896, but they imported no intent to grant any indulgence whatever to Mr. Gilbert. Indeed, the pro vis
Another question is involved in the decision of the court below, although it was not expressly passed upon. The defendant contends that the plaintiffs have acquired no right to enforce the guaranty by virtue of the assignment of the instrument to them by the original promisees, Messrs. Abaye, Vison Bimar & Go. This depends on the character of the guaranty. If it was special, it was not assignable until a right of action had arisen thereon. (Evansville Nat. Bank v. Kaufmann, 93 N. Y. 273.) The complaint shows that it was assigned before the original promisees were in a position to assert any cause of action upon it. If, on the other hand, it was a general guaranty, capable of being enforced by any one into whose hands it came, it was transferable at the time of its assignment by the original promisees, and the plaintiffs have acquired the right to enforce it.
The distinction between general and special guaranties is clearly pointed out by Chief Judge Rugee in the case of Evansville Nat. Bank v. Kaufmann, already cited. “In the case of a special guaranty,” he said, “ the liberty of accepting its terms is confined to the persons to whom it is addressed, and no cause of action can arise thereon except by their action in complying with its conditions. Such a guaranty contemplates a trust in the person of the promisee, and from its very nature is not assignable until a right of action has arisen thereon, which may, like any other cause of action arising upon contract, be then assigned.”
It seems to us that the instrument upon which the defendant is sought to be charged was a special guaranty. It would have to be deemed general if it ended with the 1st paragraph. The subsequent provisions, however, indicate that the promisor placed a special personal trust and confidence in the promisees, which was not to be extended to anybody else. The declaration that all the profits obtained from Mr. Gilbert’s business from and after the date of the instrument should be applied to the discharge of the guaranteed account, is a provision of this nature; and so also is the further
These views in reference to the consideration and character of the guaranty lead to an affirmance of the judgment.
All concurred.
Judgment affirmed, with costs.