Bailey v. Freeman

11 Johns. 221

• Court: New York Supreme Court
• Decided: August 15, 1814
• Status: Published

Opinion

Platt, J.

delivered the opinion of the court. The guaranty on the part of the defendant in this case, was an original collateral agreement; and not a promise to pay a previously subsisting debt of Blanche.

It was part of an entire contract consisting of the agreement signed by Blanche, and the guaranty signed by the defendant. The credit was originally given to the defendant as surety; and it was therefore unnecessary to show a separate consideration for the promise of the defendant. The principal contract and guaranty were simultaneous, and the consideration of the former supports the latter. Leonard v. Vredenburgh, (8 Johns. Rep. 29.) Hunt v. Adams, (5 Mass. Rep. 358.)

I think there is a sufficient “ note or memorandum” of the whole agreement, including the consideration, stated in the written agreement to which the guaranty refers; but if no consideration had been expressed in the written agreement , it might be shown by parol proof, because it is only necessary here to prove a consideration for the principal agreement. In the case of Wain v. Warlters, (5 East, 10.) it was held that the consideration as well as the promise must be in writing, in order to charge one man with the debt of another. But th~t was upon a promise to pay an independent previously existing debt of another person, and is plainly distinguishable from this case.

New trial refused.