1 Doug. 379 | Mich. | 1844
delivered the opinion of the Court.
The questions raised by the demurrer in this case are, (1.) Is the agreement contained in the guaranty within the statute of frauds? (2.) Is the consideration sufficiently expressed therein?
Preliminary to the determination of these questions, it becomes necessary to inquire by what law the validity of the instrument, as affected by the statute of frauds, is governed. The defendant claims that it is the law of New York. From the declaration it appears that the guaranty set forth was made, and the consideration for it was received in New York, and that no particular place of performance was specified. No principle is better settled than that the lex loci contractus governs in such a case, as to the validity of the contract. If not valid in New York, it would not be enforced here. Sherrill v. Hopkins, 1 Cow. R. 103; Story’s Confl. Laws, 223, 263. But, in order to avail himself of this invalidity, it is necessary that the defendant should prove to the court the law of New York, which rendered the contract invalid ; and until this is proved, the court will test the validity of the instrument by the lexfori, the law of Michigan. Sherrill v. Hopkins, 1 Cow. R. 103; Thomas v. Robinson, 3 Wend. R. 267; Holmes v. Broughton, 10 Wend. R. 75; Lincoln v. Batelle, 6 Wend. R. 475; Frances v. Ocean Insurance Co., 6 Cow. R. 429; Story’s Confl. Laws, 257, and cases there cited. The demurrer to the declaration admits the contract to have been made in New York, but the law of that state which, it is alledged, affects its validity, not being set forth in the dec
Is the contract declared upon within the statute of frauds? If so, it comes within the description used in that statute, of a “ special promise to answer for the debt, default, or miscarriage of another person.” The promissory note, on which the defendant’s guaranty is endorsed, is the debt of C. B. Dunbar, the maker. The guaranty is an undertaking to pay it if the maker does not. If nothing further were disclosed in the declaration, it might well be deemed an undertaking to pay the debt of Dunbar. But the declaration alledges that the defendant was indebted to the plaintiff', and, to satisfy such indebtedness pro tanto,. transferred to him the note of Dunbar, his own debtor, and promised to guaranty its payment. The consideration for such promise was the discharge by the plaintiff of a portion of the defendant’s indebtedness to him. It was in fact a promise by the defendant to pay his own debt, and not the debt of another. The transaction gave to the plaintiff the additional security of the liability of the maker of the note, but he still retained the undertaking of the defendant to pay the debt, if the maker failed to do so. Suppose such failure had happened, and the defendant is made to pay ; he would do nothing more than pay bis own debt to his original creditor. It would not be a
The guaranty not being within the statute of frauds, it only remains to inquire whether the consideration is sufficiently expressed therein to sustain the plaintiff's declaration. The guaranty is expressed to be “ for value received,” without stating what was the value received, which constituted the consideration of the undertaking. The declaration sets forth specifically what was the consideration. It shows a good cause of action, unless some rule of law forbids parol evidence of the consideration of a written promise. The case of Wain v. Walters, 5 East. R. 10, decided that the consideration must be expressed in a written agreement or promise coming within the statute of frauds. This, and the subsequent decisions to the same effect, go upon the ground merely that the statute of frauds required that the consideration should be stated in the agreement; and they impliedly admit, that, as to agreements not coming within the purview of the statute, the rule would be otherwise. Leonard v. Vredenburgh, before cited, expressly decides the point, and, in Dewolf v. Rabaud, 1 Pet. R. 476, is referred to by the Supreme Court of the United States, as settling the question in New York; the Court adding, that it seems to be a reasonable doctrine, founded in good sense and convenience, and tending rather to suppress than encourage fraud. Nelson v. Dubois, 13 John. R. 176; Bailey v. Freeman, 11 John. R. 221; Wheelwright v. Moore, 1 Hall’s S. C. R. 201. The words “ value received,” contained in the guaranty, cannot have the effect to exclude extraneous proof of the consideration. Such proof does not contradict or vary the import of these words in the instrument. It merely shows in what the value consisted. I am not aware of
The declaration is sufficient, and the demurrer should be overruled; and it must be so certified to the Circuit Court.
Demurrer overruled.