Miller v. . Cook

23 N.Y. 495, 22 How. Pr. 66

• Court: New York Court of Appeals
• Decided: September 5, 1861
• Status: Published

Opinion

Davies, Justice.

This action is founded on a guaranty of a promissory note, made by William R Martel and Philip S. Schott, payable to one Stephen M. Cook, or bearer. Before this note became due, the defendant being the holder thereof, transferred the same to the plaintiff, and guarantied the payment thereof in these words : “ For value received, I hereby guaranty the payment of the within note. Waterloo, March 16th, 1857. Silas A. Cook.” This being an engagement to answer for the debt or default of a third person, the question raised is, whether the agreement is a compliance with the provisions of the statute. They are, that every agreement should be void, unless some note or memorandum thereof, expressing the consideration, be in writing and be subscribed.” (2 R. S., part 2, ch. 7, tit. 2, § 2.)

Does this agreement contain an expression of the consideration ? We think it does. The statute does not require the expression of the whole consideration in the agreement, but the expression of a consideration. It would not be doubted, if the agreement had stated the consideration to be one dollar paid, it would have been sufficient, although the true consideration may have been $175, the amount of the note. A valuable consideration must be expressed, although the true and actual consideration need not be. The question presented in this case was incidentally alluded to in Holmes agt. McLaren, (19 Wend., 527.) That was an action upon the guaranty of a promissory note made by the defendant Watson, and the only consideration expressed in in the guaranty was contained in the words “ for value received.” ' On the trial at the circuit the defendant moved for a non-suit, upon several grounds, and among others, that the guaranty was void for want of a consideration expressed; that the words “ for value received” do not import or show any consideration; that they were merely descriptive of the note referred to. The motion for the non-suit was denied, and the plaintiff had a verdict. Upon a writ of error to the supreme court, Cowen, J., in delivering the opinion of the court, says, in reference to this point, upon the merits, the objection that no consideration is expressed in the guaranty, is not founded on fact. The words “ for value received” are a sufficient expression.

The same point was expressly passed upon by the supreme court, in Douglass agt. Hubbard, (24 Wend., 35,) the court holding that the words “ for value received” are a sufficient expression of the consideration within the meaning of the statute. A like ruling was made by the supreme court of the eighth judicial district, in Cooper agt. Dederick, 22 Barb. R., 516; see also, Lapham agt. Burrett, 1 Vermont R., 247 ; Whitney agt. Stearns, 16 Maine R., 294.

In Brewster agt. Silence (4 Seld., 207,) a distinct intimation was given by the learned judge who delivered the opinion of this court, that the words “ for value received,” if contained in the guaranty, would have been a sufficient expression of the consideration, and would have saved it from the condemnation it received. We are all of the opinion in this court, that the consideration is expressed in the guaranty, and that the words “ for value received” adequately and sufficiently express it.

The judgment appealed from must be affirmed, with costs.