Leonard v. Vredenburgh

8 Johns. 29

Opinion

Kent, Ch. J.

delivered the opinion of the court. The testimony offered at the trial was rejected, because the consideration for the promise was not stated in the writing produced. The case appeared to me then to be governed by the decision in Wain v. Warlters, (5 East, 10.) which was recognised by this court, in Sears v. Brinks; (3. Johns. Rep. 210.) but upon better rejection, I now think that the plaintiff ought to have recovered upon that contract.

There is no doubt that this was a collateral undertaking, within the purview of the statute of frauds; for Johnson’s note is conclusive proof that credit was given to - him, and that he was liable to the plaintiff. If the whole credit is not given to the person who comes in to answer for another, his undertaking is collateral. (6 Mod. 249. 2 Term Rep. 80.)

I have not been altogether satisfied with the decisions referred to, but it appears to me, that the p^eent ivx.»'« s n;;"»s hi determined in favour vf tie plaintiff, ■u'fV on* disturbing them $ a«d, pe»* zqpo, the examination w Mdt Ü may give to As caaec upon the stavj.ue of frauds, trayp 'help to ilInt.íTfaíe fíie t easonabi'-.'ness cf those rW-bgo Hi we atimlc the origin of tfco contract, to be ouch :vi the plaintiff ori.iecl to show,, ibi-t’e rten ho nece^ohy foe, aoif was tiiíTO, in feet, any ooivzzderatbia pasr-lng eisecotiiy between the plaintiff anddefendarit, and, of course, none was to be proved. It was all one original and entire transaction, and the sale and delivery of the goods to Johnson, supported the promise of the defendant, as well as the promise of Johnson. If the contract between Johnson and the plaintiff had been executed and perfectly past, before the defendant was applied to, so that his pr0mise could not connect itself with the original communication, then the case would have been very different, and the undertaking of the defendant would have-required a distinct consideration. A mere naked promise to pay the already existing debt of another, without any consideration, is void. But in the present case, (as the plaintiff offered to show,) the promise was made at the time of the original negotiation between the plaintiff and Johnson. It was incorporated with that contract, and I became an essential branch of it. The whole was one single bargain, and the want of consideration, as between the plaintiff and defendant, cannot be alleged. If there was a consideration for the entire agreement, (and Johnson’s note purporting to be given for value received, was evidence of it,) that consideration was the aliment for the defendant’s promise. This is the amount of the doctrine in Kirkby v. Coles; (Cro. Eliz. 137.) and it is alluded to in Tomlinson v. Gill, (Amb. 330.) and Williams v. Leper ; (3. Burr. 1886.) and to this extent I can understand the observation of Lord Eldon, (14 Vesey 190.) when he observes, that, “ the undertaking of one man for the debt of 'Another, does not require a consideration moving between them.” In Wain v. Warlters, promke of t ;he d'-l fenrJard y u'/ f ~~de. at the ÜÍU' dUl >■ AOy;r¿ Y Í !. d tí a ’ oviq r . bi.tWCir (hst Ikor vrd die third rsoza. ■i Í >f. ma-'h.- ionr> ■id-v>,-W ' ¡N-tÓ } r» vr ' -Yd y!, ¿"Y'iiÜ U dp -Vi. e , r.i that ee- G'Jr, Í11( v'vcnrdñe .veer; ; move to sr.ppoít at q »s at s.-rr -V ’ ' ; „ ddbllky . of ,Ly - persov for y deiUíávArilí' 7 q do VhAi fq ,q ¡done. y/ouíi.1 L¡íV o left me promise a nude pact. It required, at least, the consideration of forbearance, or some other consideration, arising out of, and founded upon the original lianiility. The same remark applies to the case of Sears v. Brink. But if a promise to pay the debt of another be founded on a new and distinct consideration, independent of the debt, and one moving between the parties to the new promise, it is not a case within the statute. It is considered in the light of an original promise. The eases of Tomlinson v. Gill, and Williams v. Leper, proceed upon this distinction, and the point is too clearly settled to be questioned, (Roberts on Frauds, 232 to 237.)

There are, then, three distinct classes of cases on this subject, which require to be discriminated ; 1. Cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit givprtq the principal or direct debtor. Here, as we haye'already seen, is not, nor need be, any other consideration, than that moving between the creditor and original debtor. 2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liabilijj^ is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an immediate respect to such liability, for the consideration for the original debt will not attachto this subsequent promise. The cases of Fish v. Hutchinson, (2 Wils. 94.) of Charter v. Beckett, (7 Term Rep. 201.) and of Wain v. Warlters, are samples of this class of cases. 3. A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another, arises out of some new and original consideration of benefit or harm moving between the newly contracting parties.

The two first classes of cases are within the statute of frauds, but the last is not. (1 Saund. 211. note 2.) The case before us belongs to the first class; and if there was no consideration other than the original transaction, the plaintiff ought to have been permitted to show that fact, if necessary, by parol proof; and the decision in Wain v. Warlters did not stand in the ways . . The whole agreement between the plaintiff and defend-anti consisted in the promise to guaranty the debt of Johnson. To say that the promise is void, for want of ... . disclosing a consideration, is assuming what the plaintiff offered to show ought not to be assumed, for there was no distinct consideration passing between the plaintiff and the defendant. Johnson’s note given for value received, and, of course, importing a consideration on its face, was all the consideration requisite to be shown. The paper disclosed that the defendant guarantied this debt of Johnson; and if it was all one transaction, the value received was evidence of a consideration embracing both the promises. The writing imported, upon the face of it, one original and entire transaction; for a guaranty of a contract implies, ex vi termini, that it was a concurrent act, and part of the original agreement. In Stadt v. Lili, (9 East, 348.) the defendant gave a guaranty in this form: “ I guaranty the payment of any goods which Stadt delivers to Nichols ;” and the K. B. held that “ the stipulated delivery of the goods to Nichols was a consideration appearing on the face of the writing, and when the delivery took place the consideration attached.” The writing in the present case was of equivalent import and effect. Instead of saying that he guarantied the payment of goods delivered to Johnson, the defendant guarantied the payment of the value received by Johnson.

Upon the whole, we think that the plaintiff was entitled to recover, upon production and proof of the writing. But if there was any doubt upon the face of the paper, f whether the promise of Johnson and that of the defendant Were or were not concurrent, and one and the same com» munication, the parol proof was admissible to show that fact.

A new trial ought, therefore, to be awarded, With costs-to abide* the event.

New trial granted..