Cahill Iron Works v. Pemberton, 27 N.Y.S. 927

Cahill Iron Works v. Pemberton

27 N.Y.S. 927 | New York Court of Common Pleas | 1893

BISCHOFF, J.

Defendant demurred to each of the two causes

of action which are set forth, in the complaint, alleging, as the specific ground of the demurrer, that the facts pleaded are insufficient in law to constitute a cause of action; and in considering the demurrer we may properly assume the truth of the allegations of the complaint. Cutler v. Wright, 22 N. Y. 472; Milliken v. Telegraph Co., 110 N. Y. 403, 18 N. E. 251. Each of the causes of action is upon a written guaranty, which is alleged totidem vérbis, and is void under the law of this state because the writing does not express a consideration for the guaranty. Barney v. Forbes, 118 *930N. Y. 580, 585, 23 N. E. 890; Drake v. Seaman, 97 N. Y. 230; Marston v. French, (Com. Pl. N. Y.) 17 N. Y. Supp. 509. The complaint, however, furthermore shows that the several guaranties were made in the state of Tennessee, and, because the contrary nowhere appears, it must be presumed, that the place where the contract was entered into was intended also to be the place where it was to be performed. Perry v. Transfer Co., (Com. Pl. N. Y.) 19 N. Y. Supp. 239. In the present instance, therefore, the lex loci actus agrees with the lex loci solutionis, and they equally constitute the lex loci contractus, by which the validity of the guaranty must be determined. In the absence of proof of the statute law of another state, it will be presumed that the common law prevails therein, (Whitford v. Railroad Co., 23 N. Y. 465; Waldron v. Ritchings, 3 Daly, 288;) and, as at common law a guaranty was valid without any writing whatsoever, (1 Chit. Cont. [11th Am. Ed.] pp. 5, 6, 90, 91; Pratt v. Railroad Co., 21 N. Y. 305, 308,) the statute of frauds (29 Car. H. A. D. 1677) affecting only the mode of proving it, (1 Greenl. Ev. § 262, note 6; Throop, Verb. Agr. § 8, note a; 2 Rice, Ev. § 515, etc.,) plaintiff’s counsel-contends that the guaranties are sufficient without expressing a consideration, and that the demurrer to the complaint is untenable and frivolous. The presump tion, however, that the common law prevails in another state, in the absence of proof that the common law has been abrogated by the statute law of that state, is circumscribed by still another presumption, namely, that the common law of the particular state corresponds to our own. Holmes v. Broughton, 10 Wend. 75. The common law of-the state of Hew York differed from the common law of England in that the statute of frauds, passed during the reign of King Charles H., formed a part of the former. The English colonists in this country, prior to the establishment of their independence, are presumed to have carried with them the laws of the country to which they at the time owed their allegiance, except only so far as such laws were inapplicable to their condition and to the form of government subsequently established by them. The laws so transmitted constituted the common law of the colonies, (Bogardus v. Trinity Church, 4 Paige, 178, 198, affirmed 15 Wend. 111;. 1 Kent, Comm. pp. 472, 473,) and by constitutional adoption became the common law of this state, (see constitutions of the state of Hew York, April 20, 1777, art. 35; Hov. 10, 1821, art. 7, § 13; Hov. 3, 1846, art. 1, § 17.) Treating, therefore, the statute of frauds, (29 Car. H. A. D. 1677,) which may be found printed at length in Mr. Throop’s work on the Validity of Verbal Agreements, at page 21, as part of our common law, and comparing the provisions of section 4 thereof with the provisions of. subdivision 2, § 2, tit. 2, c. 7, of the Revised Statutes, as amended by Laws 1863, c. 464, (see 3 Rev. St. [Banks Bros.’ 7th Ed.] p. 2327,) no distinction is discernible between the common law and the statute law of the state of Hew York concerning the essential requisites of the memorandum or agreement in writing whereby one person promises to answer for the debt, default, or miscarriage of another; and upon the authority of Barney v. Forbes, Drake v. Seaman, and *931Marston v. French, supra, the alleged guaranties upon which plaintiff seeks to recover in this action are equally invalid because they do not express a consideration under the common law and statute law7 of this state. It follows, therefore, that, if it will be insisted that the alleged guaranties are valid and enforceable under the statute or common law of Tennessee, plaintiff must plead the law of that state, in order that proof thereof may be admissible on the trial of this action. Bliss, Code PL § 180. Plaintiff’s motion for judgment on the demurrer as frivolous is denied, with $10 costs.