8 Johns. 29 | N.Y. Sup. Ct. | 1811
delivered the opinion of the court. The testimony offered at the trial was rejected, because the consideration for the promise was not stated in the writing produced. The case appeared to me then to be governed by the decision in Wain v. Warlters, (5 East, 10.) which was recognised by this court, in Sears v. Brinks; (3. Johns. Rep. 210.) but upon better rejection, I now think that the plaintiff ought to have recovered upon that contract.
There is no doubt that this was a collateral undertaking, within the purview of the statute of frauds; for Johnson’s note is conclusive proof that credit was given to - him, and that he was liable to the plaintiff. If the whole credit is not given to the person who comes in to answer for another, his undertaking is collateral. (6 Mod. 249. 2 Term Rep. 80.)
I have not been altogether satisfied with the decisions referred to, but it appears to me, that the p^eent ivx.»'« s n;;"»s hi determined in favour vf tie plaintiff, ■u'fV on* disturbing them $ a«d, pe»* zqpo, the examination w Mdt Ü may give to As caaec upon the stavj.ue of frauds, trayp 'help to ilInt.íTfaíe fíie t easonabi'-.'ness cf those rW-bgo Hi we atimlc the origin of tfco contract, to be ouch :vi the plaintiff ori.iecl to show,, ibi-t’e rten ho nece^ohy foe, aoif was tiiíTO, in feet, any ooivzzderatbia pasr-lng eisecotiiy between the plaintiff anddefendarit, and, of course, none was to be proved. It was all one original and entire transaction, and the sale and delivery of the goods to Johnson, supported the promise of the defendant, as well as the promise of Johnson. If the contract between
There are, then, three distinct classes of cases on this subject, which require to be discriminated ; 1. Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit givprtq the principal or direct debtor. Here, as we haye'already seen, is not, nor need be, any other consideration, than that moving between the creditor and original debtor. 2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liabilijj^ is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attachto this subsequent promise. The cases of Fish v. Hutchinson, (2 Wils. 94.) of Charter v. Beckett, (7 Term Rep. 201.) and of Wain v. Warlters, are samples of this class of cases. 3. A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.
The two first classes of cases are within the statute of frauds, but the last is not. (1 Saund. 211. note 2.) The case before us belongs to the first class; and if there was no consideration other than the original transaction, the plaintiff ought to have been permitted to show that fact, if necessary, by parol proof; and the
Upon the whole, we think that the plaintiff was entitled to recover, upon production and proof of the writing. But if there was any doubt upon the face of the paper, f whether the promise of Johnson and that of the defendant Were or were not concurrent, and one and the same com» munication, the parol proof was admissible to show that fact.
A new trial ought, therefore, to be awarded, With costs-to abide* the event.
New trial granted..