4 Denio 559 | N.Y. Sup. Ct. | 1847
The first question presented by the report of the referee is, whether the agreement on which the suit is brought, is within'the statute of frauds. “ In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged therewith.” 2. “ Every special promise to answer for the debt, default or miscarriage of another person.”. (2 R. S. 135, § 2.) This agreement, by its terms, is plainly intended to bind the defendant to answer as well for a debt theretofore contracted, by Peck, Hewlett & Foster, and protected by the plaintiff’s endorsement, as for subsequent engagements of that firm which he should endorse. It is, therefore, such an agreement
The' next- inquiry is, whether the consideration of the agreement is sufficiently expressed therein. Previous, to the revised statutes, the rule, although at times doubted, was well settled in this state and- in England, that to render a memorandum' or agreement in writing valid- under the statute of frauds, it was required that the consideration for the promise, as well as the promise itself, should be expressed therein. That the word agreement, required by the statute to be in writing, comprehended the consideration as well as the promise, and that the omission could not be supplied by parol proof. (Sears v. Brink, 3 John. R. 209; Leonard v. Vredenburgh, 8 id. 29; Bailey & Bogert v. Freeman, 11 id. 221; Nelson v. Dubois, 13 id. 175; Rogers v. Kneeland, 10 Wend. 219 ; Wain v. Warlters, 5 East, 10; Saunders v. Wakefield, 4 B. & Ald. 595; Jenkins v. Reynolds, 6 Moore, 86; Chit. on Cont. 517, ed. 1842.) Under this rule, the question arose, what amounted to an expression of the consideration,.upon the face of the writing 1 Mr. Justice Nelson, in Rogers v. Kneeland, reviewed some of the leading English cases on this question, and came to the conclusion that “a consideration implied or inferred from the-terms of the instrument, is as effectual as if expressly appearing on its face.It is a general principle,” he said, “ applicable to all instruments or agreements, that whatever may be fairly -implied from the terms or language of an instrument,- is, in judgment of law, contained in it.”
In the case of Bewley v. Whitford, (1 Hayes’ Irish Exch. R. 356,) Joy, Ch. Baron, after a full'review of the cases as they-stood in 1832, came to this result—“ that the consideration, must clearly appear upon the guaranty itself, either by express-statement or necessary implication.” This question was considered in the case of. Packer v. Willson, (15 Wend. 343,) which .arose since the. revised statutes. The. defendant, with' a view-to gain time for. the makers of two' existing, notes held by the plaintiff, and which were past due, signed a guaranty endorsed upon each of them in .these, words,- “I guaranty the
It is plain that there is no consideration expressed, stated or specified in the writing upon which this suit is brought, for the promise contained in it; and if it be conceded that the statute would be satisfied if the consideration could be fairly implied from the language of the writing, I do not see any certainty of hitting on the true one, if an attempt should be made. There are several considerations which, without much ingenuity, might be conjectured. In Cole v. Dyer, (1 Cromp. & Jer. 461,) Lord Lyndhurst is reported to have said, that when “ two distinct considerations may, with equal probability, be inferred,
I see no ground upon which this action can be sustained.
It admits of no doubt that after the decease of Daniel Peck, by which the firm of Peck, Howlett & Foster was dissolved, the surviving members might, if they thought proper so to do, continue to transact business in the name of the late firm. They were at liberty to adopt this or any other name, in carrying on a joint business, whether general in its character, or limited to the winding up of that of the late firm; and if this name had been so adopted by Samuel R. Howlett and Ezra Foster, contracts duly executed by either for such new firm, would be obligatory on both. The usual form of executing copartnership contracts, as bills and notes, is by signing the copartnership name alone. But it is not indispensable that the execution should be in that form; for all the members of a firm may be bound by the name of one of their number, when signed for all, that being expressed on the face of the writing. (3 Kent, 41, 5th ed.; Coll. on Partnership, 228; Story on Agency, §§ 37, 154, 155; Chitty on Bills, 56, 59,10th Am. ed.) In this case the notes of July 28th and September 10th, may have been given, and such indeed seems to have been the fact, in the course of winding up the business of the late firm of Peck, Howlett & Foster, and although signed by "S. R. Howlett, for the late firm of Peck, Howlett Foster,” they may have bound both the surviving members of that firm.
Qne of the questions submitted by the referee is, whether the notes above mentioned, “ are such notes as are described in the” agreement executed by the defendant to the plaintiff, and upon which this action was brought.
The referee has found that these notes were executed by S. R. Howlett, in the form in which they appear, with the assent and concurrence of Foster, and were used in the process of winding up the business of the late firm of Peck, Howlett & Foster, having been endorsed by the plaintiff for that purpose at the request of the surviving members, Hewlett and Foster.
This action is founded on a “ special promise to answer for the debt, default or miscarriage of” the two surviving members of the late firm of Peck, Howlett & Foster, and unless the agreement including and expressing the consideration is in writing, it is void. (2 R. S. 135, § 2.) Excluding so much of the defendant’s engagement as refers to past endorsements, and which is not material in this case, the residue of his agreement, as written, was in substance and effect, that if the plaintiff would endorse notes for S. R. Howlett and E. Foster, to be
I refer to the opinion of the late Mr. Justice Cowen, in Douglass v. Howland, (24 Wend. 35,) as containing a correct summary of the law applicable to such a case as this. He has shown very conclusively,' as it seems to me, that although the present statute expressly requires the consideration of “ every special promise to answer for the debt, default, or miscarriage of another person” to be expressed in the written contract, still this is only what was virtually required by the former statute of this state, as well as by the English statute, on the same subject. Neither provision could be satisfied with anything short of expressing the consideration in the written agreement. The difference, and the whole difference, as far as I see, rs that by one the requisition is expressly made, and in the others it
I think the plaintiff is entitled to judgment on the report
As my brethren differed in opinion, and I was not in court on the first argument, the case could. not be decided. We have now had a second argument, and I fully concur in the opinion of my brother Beardsley, that the plaintiff is entitled to judgment. In relation to agreements of this kind, the present statute of frauds only says in terms, what the former statute said in legal effect, that there must be a writing “ expressing the consideration.” As to past endorsements, I agree that no consideration appears on the face of the instrument; but as to future endorsements, the consideration is so plainly expressed that no one can fail to see it. The defendant writes to the plaintiff—“ I hereby obligate myself to hold you harmless for any endorsements you may make for the late firm of Peck, Howlett <fc Foster.” This is fully equivalent to saying, “ if you will endorse, I obligate myself to hold you harmless.” The plaintiff ’s endorsement is the consideration for the defendant’s undertaking. The question is not about the motive or inducement for the promise as between the defendant on the one side, and Howlett & Foster on the other. It is a matter of no importance whether Howlett & Foster gave the defendant a sum of money for this letter of credit, or whether, as between them, the undertaking .was wholly gratuitous. The question is about a consideration as between the parties to the written agreement; and as to that, the defendant says, “ if you will endorse, I will hold you harmless.” That endorsing is a good and sufficient consideration for the promise has not been questioned by any one; and that the consideration is plainly expressed, appears to me to be equally undeniable. It is the ordinary case of a commercial guaranty. A writes to B., “ If you will lend C. a sum of money, or sell him goods on credit, I will see you paidor, “ I will pay, or see you paid, for any money you may loan, or goods you may sell to 0. on credit or, “I will hold you harmless for any credit for money or goods
Judgment for the plaintiff.