83 N.J.L. 471 | N.J. | 1912
The opinion of the court was delivered by
Judgment on demurrer to special pleas having been entered for the plaintiff the case went to a trial on the general issue upon which testimony offered by the defendant' in support of the pleas that had been overruled was excluded. Final judgment having been entered for the
The judgment final is affirmed for the reasons stated in the opinion of the Supreme Court sustaining the demurrer to the pleas. That opinion, it is true, speaks of the defendant’s contract as one of “guarantee,” which is the term used in the contract of the defendant, which is in these words:
“In consideration of the execution of the within contract by Perkins Goodwin Company, I hereby guarantee the payment to them on October 20th, 1909, of the sum of $7,000, as provided for by the same.
“(Signed) John' IIaet.”
This is a direct promise by the defendant to pay the plaintiff in a given event, based upon a specified consideration moving from the plaintiff, and is entirely independent of the enforceability of the “within contract” against the other party thereto. The term “guarantee” in such a context imports an undertaking to pay in the given event, which is one of its meanings (Webster’s Hew International Dictionary), and not a promise to be answerable for the default of another, which is its technical meaning in an appropriate context. The former is evidently the sense in which the term is employed in the opinion which, guarded by this note of explanation, properly disposes of the questions argued by the plaintiff in error who, having promised to pay the stipulated sum to the defendant in error if it would execute the “within contract” with the E. E. Eamsey Company, sought to avoid its promise, after the consideration had passed, upon the ground that the execution of such contract by the E. E. Eamsey Company did not bind that corporation. It was not pretended that the contract was illegal, or immoral, or against public policy or otherwise unlawful, but only that its execution by the secretary and treasurer of the Eamsey company was not duly authorized. It is admitted that the defendant in error lawfully executed the contract which was the sole consideration and one of the events upon which the
For this reason we do not consider the question of the legal obligation of the guarantor of a contract defectively executed by its primary obligor.
The judgment of the Supreme Court is affirmed.
For affirmance — Rone.
For reversal — Garrison, Swayzb, Parker, Bergen, Voorhees, Kalisoi-r, Bogert, Vredenburgh, Vroom, Cong- ■ don, White, Treaoy, JJ. 12.
