11 Barb. 14 | N.Y. Sup. Ct. | 1851
By the Court,
The revised statutes (vol. 2, p. 135, § 2) declare that every agreement shall be void unless such agreement, or some note or memorandum thereof expressing the consideration, be in writing, and subscribed by the party to be charged therewith, in the following cases : 1st. An agreement that by its terms is not to be performed within a year. 2d. Every special promise to answer for the debts, &c. of another. 3d. Every agreement, promise or undertaking, made in consideration of marriage, except promises to marry. The revisers seem to have made a distinction between agreements and promises, and intentionally to have chosen one word for one class of contracts, and the other for another class. Before the revision, it was held that the agreement to pay the debt of another must express the consideration in writing, as well as the thing to be done ; although the statute had not then any such express provision, it being held that the term “ agreement ” in itself implied a consideration, and that when the statute required the agreement to be in writing, it impliedly required the consideration to be so expressed also. (Wain v. Warlters, 5 East, 10.) Yet it was never supposed that the statute applied to such an agreement when under seal, so as to require the consideration to appear on it; the seal of itself imported a consideration and so satisfied the statute, or it may have been deemed that the statute had no reference to sealed instruments. In this respect, so far as the statute against frauds .is concerned, this agreement satisfies its requirements, in both respects; it expresses a pecuniary consideration, and the seal also imports a consideration. (Douglas v. Howland, 24 Wend. 35. Bush v. Stevens, Id. 256.) The defendant, however, was at liberty, under the pro
The informality of contracts among merchants is such, that great injustice would be done if they were interpreted by the strict rules of grammar; but if the word “ paid ” be allowed here to contain within itself the double meaning of “ paid or to be paid,” the difficulty is removed; it then shows on its face that the consideration was paid, or was to be paid. The term “ paid,” by itself, does not distinctly show whether the sum has been paid or is to be paid; the proper auxiliary must be implied or expressed, before it is known which is the meaning intended. The common “ bought and sold notes,” are subject to the same ambiguity. “ Bought of A. B. by C. D. 100 bales of cotton for $30 per bale.” This seems to imply a sale completed, yet they only mean one to be completed. If the expression were “ I will, for one hundred dollars, to me paid, sell to A. B. 100 bushels of wheat,” it would be entirely uncertain whether the money had been paid or was to be paid. And although here the guaranty being in the present tense, that uncertainty is not so palpable, it is not en
As the instrument proved, satisfied the statute of frauds, that Statute might be entirely laid out of view. Then the defendant’s right depends on the law opening the proof as to the consideration of sealed instruments ; and as the proof was opened to the defendant to show that there was no consideration, it allowed any consideration, whether that named in the instrument or any other, to be shown or implied. And it was incumbent on the defendant to prove the whole negative that he had assumed, viz. that there was no consideration; he could not limit the plaintiff to a past consideration. But if a consideration of a thing to be
Edmonds, Edwards and Mitchell, Justices.]
The cases showing that a promise of one person to pay the debt of another, founded only on apast consideration not beneficial to the promisor,, nor made at his request, is not binding on him, do not affect this case. There the consideration was not good in law; here the consideration, whether of money paid at the time, or to be paid, is good.
The precise point taken by the defendants below was clearly too narrow. It was that the instrument expressed the one dollar to have been paid, and that it not having been paid, the defendant was entitled to a verdict. This would have excluded the plaintiff from proving an actual and express agreement on his part to pay the dollar. It seems clear that the statute does not confine the promisee to any particular proof of consideration; that it retains the presumption that there is a sufficient consideration, and is new only in allowing the defendant to prove that there was no consideration.
The judgment should be affirmed with costs.