27 Barb. 181 | N.Y. Sup. Ct. | 1858
The instrument in writing, which is the subject of the plaintiff’s action, is not a bill of exchange,' within the law merchant, because it is not for the payment of money, absolutely and at all events, but its payment depends upon a contingency. (Chitty on Bills, 134.) The acceptance by the defendant, Gilbert H. Terrett, is not the guaranty of a debt due from Jane B. Jones, the drawer, to David H. Van Wagner, the payee, because the relation of principal and surety did not exist at the time the draft was accepted, and is not created thereby. Bo question, therefore, arises, under the statute of frauds, in regard to the validity of Terrett’s promise, or in regard to the want of any consideration expressed upon the face of the instrument which contains the promise. (Johnson v. Gilbert, 4 Hill, 178. Mather v. Perry, 2 Denio, 162.) The promise of the defendant is an original undertaking, and being executory, a consideration may be proved by extrinsic evidence. (Cowen & Hill’s Notes, 1473, and cases there cited.) I now propose to consider, briefly, the nature of the defendant’s undertaking, and its legal effect.
By an agreement in Writing, bearing date the 27th of March, 1856, Jane B. Jones, the person who drew the draft, entered into a contract with the defendant to erect five brick houses, on the north side of Putnam avenue in the city of Brooklyn, upon lots which were, by the contract, to be sold and conveyed by Terrett to Mrs. Jones. He was to furnish her with a building loan of $3500, payable by installments, as the buildings progressed, to secure the payment of which loan, together with the purchase money for the lots, he was to have certain bonds and mortgages, particularly described in the agreement. By the terms of the agreement, the first payment of $500, on account of the loan, was to be made by the defendant, to Mrs. J ones, when the first tier of beams was put upon the buildings, and the walls were up all around. The second payment of $500 was to be paid by him, to Mrs. Jones, when the second tier of beams was put upon the buildings, and the walls were put up all around.
The draft is very particular and specific in its direction, and means a great deal more than a mere request to pay over the specified sum of money. Mrs. Jones had no money in the hands of Terrett subject to her draft, nor did she expect to have any, except the- second payment that would
The counsel for the plaintiff insists that the contract between Mrs. Jones and the defendant is referred to in the draft merely to designate the particular account to which the money, when paid, was to be charged. And he refers to Kelley v. The Mayor of Brooklyn, (4 Hill, 265.) There the draft was for $1500, payable absolutely, with a direction to charge to the Bedford road assessment. The court held the instrument to be an ordinary bill of exchange, and the clause “ charge to the Bedford road assessment," a mere direction as to the mode of reimbursement. In the present case the paper is not a bill of exchange, and the reference to the contract out of which the money was to proceed, and the direction making it applicable to the second payment, must be read in connection with the other parts of the instrument, to ascertain the intention of the parties. I am, accordingly, of
Brown, S. B. Strong and Emott, Justices.]
The judgment should be reversed, and a new trial at the circuit granted, with costs to abide the event.