6 Barb. 547 | N.Y. Sup. Ct. | 1849
By the statute, {Laws of 1835, ch. 197,) an assignee “for a valuable consideration,” of a note, &c., here the assignor is dead, if there be no personal representatives of the assignor, or they refuse to sue, may sue in his own name. The assignment must be for a “ valuable consideration” to bring it within this act. The use of the word “ valuable,” in this place, no doubt was intentional, and has meaning. It was not intended to cover cases of mere gifts. Such a disposition of dead men’s estates should at least come to the notice of the executor or administrator. The difference between a valuable or meritorious consideration, and a voluntary or good one, is well undei-stood. The former is founded on something deemed valuable, as money, goods, services and marriage. A good or * voluntary consideration is founded upon natural love and affec- * tion between near relatives by blood. (4 Kent, 464, 465. Hill El. of Law, 76. 1 Comyn on Cont. 8. 4 East, 455. 12 Pet. 241. 11 Wheat. 199. 8 Cowen, 406. 3 Id. 537. 4 Wend. 303. 2 Brock. Rep. 132. 8 Paige, 165. 2 Taunt. 69.) The words have been used in this sense in several instances, in our statutes. (2 R. S. 134, §§ 1, 3, 4. Id. 137, § 4; and see revisers’ notes to these sections.) Courts of equity will not enforce a mere gratuitous gift or moral obligation. (Colman v. Sarrell, 1 Ves. jr. 50. Tuffnall v. Constable, 8 Sim. 69. Flower v. Martin, 2 Myl. & Cr. 459. Story’s Eq. §§ 706, 706 a, 787, 793 a, 973, 987.) In this case the children gave bonds to the payee, each to pay him $500 annually for life. But whether these were given in consideration of the personal property is not stated. It might have been for real estate. The testimony is#
But I think there is'a less technical objection to the report. The note was dated August 2d, 1836, became payable on the 5th of May, 1837, and was transferred, with the guaranty, on the 28th of September, intermediate. The note could have been collected at any time after the 5th of May, 1837, and in the years 1838 and 1839. A guaranty, that a demand is collectable, is clearly a conditional promise, binding upon the guarantor only in case of diligence. (Loveland v. Shepard, 2 Hill, 139. Curtis v. Smallman, 14 Wend. 231. Moakly v. Riggs, 19 John. 69.) It is not like an indorsement, where the indorser is primarily liable, subject to be discharged by the laches of the holder ; not on the ground of non-fulfilment of the contract, but because of the supposed injury to the indorser by such neglect. Nor is it like a guaranty of payment, which, like that of an indorsement, is similar to a new note, but is purely a conditional promise, becoming absolute on the performance of the condition precedent. (White v. Case, 13 Wend. 543.) There is no doubt but that the neglect or delay in this case was an entire failure on the part of the plaintiff to fulfil the condition, and prevents a recovery unless the defendant has caused that delay, or has taken some other step which precludes him from making this objection. But I can not find that he had any connection with the matter from the time he gave the guaranty, until as late, certainly, as the fall of 1838, and probably not until after Van Derveer’s death. Nor have I been able to find any express promise on the part of the defendant to pay it. He remarked that he expected to have to pay it,
The report must be set aside.
Paige, P. J. concurred.
The act of May 2,1835, relative to voluntary assignments of choses in action, (Laws of 1835, p. 229,) is an answer to the objection to the plaintiff’s right to sue in his own name. By that statute, it is enacted that the assignee or assignees for a valuable consideration of any bond, note or other chose in action, which have been or may hereafter be assigned, if the assignor be dead and there be no executors or administrators appointed upon his or their estate, or if such executors or administrators have no interest in .the things so assigned, or shall refuse to prosecute for the same, may sue and recover in his, her or their own name or names, upon bonds, notes and choses in action.” The assignment of a chose in action need not be by a writing under seal; a delivery of it, for a good and valuable consideration, is sufñciént. (Prescott v. Hill, 17 John. 284. Briggs v. Dow, 19 Id. 95.)
The obligation of the defendant, upon his guaranty, was in legal effect, that he would pay the note, provided it could not be collected of the maker, after using due diligence, by process of law to collect it of him. In general, a party who suffers a term to elapse without prosecuting the maker is guilty of laches, and loses his remedy against the guarantor. (Moakly v. Riggs, 19 John. 69. Kies v. Tifft, 1 Cowen 98. White v. Case, 13 Wend. 543. Eddy v. Stanton, 21 Id. 255. 5 Id. 307. Loveland v. Shepard, 2 Hill, 139. Cumpston v. McNair, 1 Wend. 457. Curtis v. Smallman, 14 Id. 231. Thomas v. Woods, 4 Cowen, 173. The People v. Jansen, 7 John. 332.) The remedy, however, against the guarantor, will not be impaired, if the debtor was insolvent, and so continued, after the guaranty, and up to the commencement of the suit; nor, if the delay in prosecuting the principal debtor is at the instance of the guarantor. In the first .case, the guarantor suffers no loss by the delay; and in the second he can not be permitted to turn an indulgence granted at his own solicitation, into a weapon of defense. (Thomas v. Wood. 4 Cowen, 173.)
The plaintiff claims that he has a right to recover, upon the ground that the omission to proceed against the principal so as to fix the defendant as guarantor, was occasioned by the request
The first answer to the foregoing points is, that none of them were taken before .the referee, either in substance or in form, as they have been urged here. The point actually taken before the referee was indefinite, and did not show wherein the proof offered differed from the pleadings. The party who takes an exception must be so specific as to remove all doubt as to his meaning, and to apprise his adversary and the court of the precise point of his objection. The court are under no obligation to modify the propositions of counsel, so as to make them suit the case, but may dispose of them in the terms in which they are proposed. (Reab v. McAllister, 8 Wend. 109, 111. 2 Cowen & Hill’s Notes, 790, and cases.) The practice in this state is too well settled to require an examination of the cases.
The second answer is, that though the plaintiff might have declared against the defendant specially as guarantor, he was not bound to do so. As the transfer of the note by the defendant was shown to be for a, valuable consideration, and so admitted to be, on its face, it was properly given in evidence under the money counts. (Chit. on Bills, Springf. ed. of 1836, p. 595, et seq.) In Butler v. Haight, (8 Wend, 535,) in an action against a defendant, the payee of certain notes, which he had transferred and guarantied in terms like the one under consideration, this court held, that the notes and guaranty were admissible as evidence under the common counts, they “ being
We are thus brought to the grounds on which the plaintiff claimed a right to recover, notwithstanding his laches in not charging the defendant by proceeding without delay to collect the note against the principal. First, as to the defendant’s having occasioned the delay. It was proved that the defendant sent word to the plaintiff, requesting him not to prosecute the note, for he, the defendant, had made arrangements with Reid, the maker, to pay it. This conversation took place about two years after the note became due, and of course after the defendant was discharged by the plaintiff’s laches; unless those laches were occasioned by him, or were waived. The defendant was a lawyer of distinction, and knew his rights. It is evident that he knew at that time that the note had not been sued. Whether in truth he had made any arrangements with the maker to pay it, is immaterial. The plaintiff had a right to rest on the defendant’s assurances. He might well have supposed that the defendant was indemnified by the maker, and intended to pay it. It affords also persuasive evidence that the prior delay had been caused or sanctioned by him. The referee was warranted in finding the fact from the evidence in the cause, that the plaintiff’s delay in suing was by the defendant’s own request.
Second, as to the defendant’s payment of fifty dollars. This payment was made by the defendant to the attorney of the
In Trimble v. Thorne, (16 John. 152,) it was held that in order to recover against an indorser who had not been regularly charged as such, the plaintiff must show that the defendant, when he subsequently promised to pay, had full knowledge that he was discharged by the holder’s laches. The court, said Spencer, Ch. J., did not mean to leave it to be inferred from the subsequent promise, that a regular notice had been given, or was intended to be waived. To the same effect is a dictum of Savage, Ch. J., in Jones v. Savage, (6 Wend. 658.) But the doctrine of those cases is shown by Cowen, J., in Tibbetts v. Dowd, (23 Wend. 379,) to be at variance with the current of authorities in England, for above a century, and of those of this country, as far back as they can be traced, and was expressly overruled. There are some cases which go to the opposite extreme, and in case of a promise to pay, throw on the defendant the double burthen both of proving laches and that he was ignorant of them. Such is Kennon v. M’Rea, (7 Porter, 175, 183, 184. Nash v. Harrington, (1 Aikin, 39,42.) Chancellor Kent (3 Com. 113) takes the middle ground, saying, “The weight of authority is, that this knowledge may be inferred, as a fact, from the promise, under the attending circumstances,
It is urged by the defendant that the promise, implied from the payment of fifty dollars, was without consideration and void. Bronson, J. in Tibbetts v. Dowd, (23 Wend. 412,) says, that as an original question, he should be of opinion, that whenever it plainly appears that there has been laches on the part of the holder, the drawer or indorser is discharged, and that a subsequent promise, though made with full knowledge, can not aid the case. But, he concedes that the rule has been settled otherwise, and whenever it becomes necessary to apply it, he should feel bound by the weight of authority. And he elsewhere observes, “ that the holder may recover on proof of a promise by the indorser, with knowledge that he was not liable; not, however, on the ground that the indorser is bound by the promise, as matter of contract, for it wants consideration; but on the ground that a promise amounts to a waiver of the objection that the proper steps had not been taken to charge the indorser.” There are various other cases where a party is liable on his
On the whole, I think the referee has decided the matter correctly, and his report should not be disturbed.
Report set aside.