38 Cal. 133 | Cal. | 1869
The appeal from the order denying the motion for a new trial not having been taken within the time prescribed by law, must be dismissed. The appeal from the judgment remains.
The defendant, Aitch, made his promissory note to the plaintiff, and within three days after its delivery the defendant, Thurston, indorsed upon the note the following guaranty : “I guarantee the payment of the within note. H. H. Thurston.” The guaranty was given in pursuance of a verbal agreement made by and between the three parties, about three days before the delivery of the note, whereby the plaintiff promised to sell to Aitch certain horses, and in consideration thereof Aitch promised to execute, and Thurston to guarantee the payment of, a promissory note for the price agreed upon for the horses.
The third finding of fact is as follows : “ That within three days after said promissory note was so made and delivered to plaintiff, and as part of the same transaction, and in pursuance of his said agreement so to do, defendant, Thurston, did guarantee the payment of said note, in writing, signed by him upon the back thereof, in the words set forth in said complaint.”
It is held in Ford v. Hendricks (34 Cal. 675), upon the authority of Riggs v. Waldo (2 Cal. 485), Evoy v. Tewksbury (5 Cal. 285), Jones v. Post (6 Cal. 102), Haseltine v. Larco (7 Cal. 32) and Otis v. Haseltine (27 Cal. 80), that it is “well settled in this State that the promise of a guarantor is not within the Statute of Frauds, if made before the delivery of the note.” The promise must, of course, be supported by a consideration, for, in the absence of a consideration, there is no contract, and the promise is a nudum pactum. (Leonard v. Vredenburgh, 8 John. 37.) The consideration which supports the promise of the guarantor must, under the doctrine of the cases above cited, be the consideration passing between the maker and payee of the note. This point was so decided in Otis v. Haseltine (27 Cal. 80). In that case, and in Ford v. Hendricks and the cases therein cited, the
In view of the finding in this case, which we have alluded to, it becomes unnecessary to examine the doctrine of Brewster v. Silence (8 N. Y. 210) and other cases in that State, that the principal contract and the guaranty is each a distinct and entire contract, and that the writing in the latter case must express the consideration; but it is apparent that it cannot be sustained in this State without overturning the uniform authority of the cases in our own Courts.
Judgment affirmed.
Sprague, J., expressed no opinion.