Dunham v. Countryman, 66 Barb. 268

Dunham v. Countryman

66 Barb. 268 | N.Y. Sup. Ct. | 1873

Hardin, J.

The proofs taken upon the trial bring home to the plaintiff notice that the defendant Daniel Countryman was surety upon the note, and as such surety, became one of the makers thereof; and the plaintiff having such notice, the defendant Daniel is entitled to have the well settled principles of law in respect to sureties applied, in determining his rights and lia*270bility as surety. (Fell on Surety, 228. Griffith v. Reed, 21 Wend. 503.)

Two questions arise in respect to the agreement or contract of December 16, 1872, made between the plaintiff and Peter and Silas Countryman.

There is no proof to indicate that the defendant Daniel ever knew of that agreement, ■ until long after its execution; and no evidence is given to show that he ever assented to its provisions.

First. The plaintiff insists that the agreement does not, in terms, extend the time of payment of the note.

Full effect, by the proper rules of construction, must be given to all the parts of the agreement. At the outset it is called an “agreement,” and in the body, it is called “a contracts Peter and Silas agree to pay $170 “within sixty days from the date of this contract,” to apply on the note; and then it is further agreed on their part, as to the time of payment of the note, in these words, to wit, “ the balance to be paid on January 1st, 1874.” Bearing in mind that the note was then overdue, and that the whole “contract” relates to the time of payment, the words gain clear and additional significance. Their agreement to pay is based upon a full knowledge that the note was then overdue, and that the time of payment was being fixed by the “ articles of agreement.” In this connection it is evident that the words “ the balance to be paid January 1,1874,” are used to limit and fix the final payment. Then follow the very pointed words in behalf of the holder of the note, words used by him, evidently, to indicate his assent to the “time of payment” as fixed and settled upon by the additional provisions of the contract.

Why insert “the party of the second part agrees to all the stipulations in the foregoing contract”—unless for the purpose of obliging the holdef to abide by, and observe, on his part, that part of the agreement changing “the time of payment” of the note then overdue. Sup*271pose that the note had been payable, by its terms, in Borne, and the parties had, by similar language, stipulated that $170 should be paid in Utica, and the “balance to be paid” in Syracuse; could there be any doubt the makers would be bound to pay in the places named, and the holder bound to receive payment in the places thus fixed and settled upon ? That would have been an agreement, as to place of payment, clear and certain, binding upon both parties.

This one relates to time, and manifestly was intended to fix anew the times of payment; and unless held obligatory upon the holder of the note, the words “the party of the second part agrees to all the stipulations in the foregoing contract” must be disregarded, and held nugatory. The object of their insertion manifestly was to obligate the holder to assent to, to agree to the times of payment of the note theretofore stated in the “contract” or “agreement.”

The fair intent and meaning of the parties to the agreement must govern. (6 Duer, 294. Place v. McIlvain, 38 N. Y. 96. Smith v. Townsend, 25 id. 479.)

There being an agreement to extend found upon the face of the paper, the law does not stop to inquire whether the result of the extension was injurious to the surety, but absolutely discharges him. (Huffman v. Hulbert, 13 Wend. 377. Blydenburgh v. Bingham, 38 N. Y. 371.)

Secondly. It is insisted by the learned counsel of the plaintiff that the agreement is without consideration.

It recites a seal, and opposite to each signature a seal is attached. The seal imports a consideration, and is conclusive evidence thereof.

Section 77 of the Revised Statutes (2 R. S. 423, Edm. ed.) does not apply and change this rale of the common law. That section declares: “In every action upon a sealed instrument, and where a set-off is founded upon any sealed instrument, the seal thereof shall only be *272presumptive evidence of a sufficient consideration, which may be rebutted in the same manner and to the same effect as if such instrument were not sealed.”

[Oneida Circuit and Special Term, June 9, 1873.

This action is not founded upon a sealed instrument: it is founded upon an ordinary promissory note, not sealed. There is no set-off, here, founded upon a sealed instrument. Full effect must be given to the seal; and it is conclusive evidence of a consideration. (Calkins v. Long, 22 Barb. 97. Gilleland v. Failing, 5 Denio, 308. Wilson v. The Baptist Education Society, 10 Barb. 308. Parmelee v. Thompson, 45 N. Y. 58.)

Judgment is ordered for the defendant Daniel Countryman, with costs.

Hardin, Justice.]