Marquand v. Hipper

12 Wend. 520 | N.Y. Sup. Ct. | 1834

By the Court,

Sutherland, J.

This is undoubtedly a special promise to answer for the default of another, and requires not only that the promise, but the consideration for it, should be in writing. 3 Johns. R. 210. 4 id. 280. 4 Cowen, 432. 6 id. 346. 2 R. S. 135, sec. 1, subd. 2.

The consideration does sufficiently appear upon the face of the instrument it is the putting into the hands of Monnell, by the plaintiff, of any amount of silver, not excceeding $400, for the purpose of being manufactured by him. In Stadt v. Lill. 9 East, 348, 1 Campb. 242, S. C., the guaranty was as follows: “I guarantee the payment of any goods which J. Stadt delivers to J. Nichols. ” It was held that the consideration was sufficiently expressed. Lord Ellenborough, before whom the cause was tried at nisi prius, was of opinion that the stipulated delivery of the goods to Nichols was a consideration appearing on the face of the writing; and when the delivery took place, the consideration attached, although the instrument contained no promise on the part of the plaintiff to deliver the goods, and no action would have lain upon it against him, and the court in banco concurred in this opin-jon> anc[ refUSed a motion to set aside the verdict. That case is very similar to this, and is certainly quite as strong. In Ryde and others v. Curtis, 8 Dowl. & Ryl. 62, 16 Com. L. R. 335, S. C., the guarantee was in these terms; “ I do hereby agree to become surety for R. G., now your traveller, in the sum of £500, for all money he may receive on your account. ” This was held sufficient to sustain an averment in the declaration that the defendant’s guaranty, was that the plaintiffs would keep and continue the traveller in their service. Chief justice Abbott says: “ I think it sufficiently appears, on the face of this instrument, that the consideration for the guaranty was the continuance of the traveller in the service of the plaintiffs : ” in which the other judges concurred. In Newbery v. Armstrong, 4 Carr. & Payne, 59, 19 Com. Law. R. 55, 272, S. C., an agreement in the following terms was held to contain a sufficient consideration on the face of it '• “ I bind myself to be security to you for J. C., late in the employ of J. P„ for whatever you may entrust him with, while in your employ, to the amount of £50; in case of any default to make the same good. ” It was urged that there was no mutuality in the agreement ,* but the court held that it was sufficient that the agreement was plainly prospective, and in consideration of the party being employed and entrusted. In each of these cases, a more liberal construction of the agreement was required, in order to sustain it, than is requisite in the case at bar. This doctrine is fully considered in the recent case of Rogers v. Eneeland, 10 Wendell 218. Most of the authorities are there collected, which renders it unnecessary for me to go elaborately into their consideration. That case clearly sustains the sufficiency of the guaranty on which this suit is brought.

New trial denied.