Woodstock Bank v. Downer

| Vt. | Mar 15, 1854

The opinion of the court was delivered by

Bennett, J.

The first question is, can the Bank of Woodstock sustain an action upon this guaranty. The line from the defendant is addressed, it is true, to Mr. Johnson, wishing him to discount a certain note therein described, and the defendant adds, “I guarantee said note is good and the payment of the same.”

It appeared on trial, that Mr. Johnson was at the time cashier of the Bank of Woodstock, and that the note described in the guaranty was presented to and discounted by the bank, the bank relying upon the guaranty. Though the guaranty is not addressed to Mr. Johnson as cashier of the bank, yet it clearly imported official action on his part as an affair of the bank and the case shows that the consideration moved from the bank. We think, under the decisions of this state especially, the promise may well run to the bank from whom the consideration moved.

The next question raised is also a question of variance. The-note offered in evidence was for four hundred dollars, payable in ninety days from date, with a provision that if at the end of ninety days the makers pay one-half the note and the interest on the other half in advance for ninety days, the payment of that half shall be extended for that further length of time. This note of the principiáis is set up in the declaration as an absolute promise on their part to pay the $400.00 at the end of ninety days. The promise of the principals must at least be declared on according to its legal effect.

The provision in the note for extending the time of payment for one-half, qualified the body of the contract. It became a contract to pay absolutely $200.00 at the end of ninety days, and whether the residue of the note should then become payable rested in contingency. In Smith’s Leading Cases, (last edition) 645, a case is cited from 8 B. Monroe, 377, Howard v. Chiles, and is thus digested. A consideration of a warranty was alleged to be the sale of a •horse for $66.00, and the proof was of $50.00 paid and a note given for $16.00 payable on a contingency, and it was held there was a variance; the price averred being certain and without condition and the one proved being in part depending upon a contingency. It is said that as the principals on the note did not avail themselves of the contingency, the whole note in fact became due at the end of ninety days, and that the provision as to extending the time of payment for one half the note, became functus officio. Suppose it be so, the makers of the note had a right to avail themselves of -the provision when the note was given, and this provision became a constituent part of the contract, and should have been truly ■described in the declaration. This is not matter in discharge of .the contract, which may be omitted in the declaration, and to be treated as matter of defense, but it is a modification of the contract itself and should have been set out in the declaration with the -proper averments. The case of Stanwood v. Scovel, 4 Pick. 422, is much like the present.

The judgment of the county court is reversed and the cause remanded.