Hosmer, Ch. J.
Three questions have been raised in this case ; and on these alone shall I express an opinion. 1. Whether there was a consideration for the defendant's promise. 2. Whether the consideration not being in writing, the case is within the statute of frauds and perjuries. 3. Whether the contract averred is supported by the one proved.
The first question proposed it is not difficult to determine. The mere promise of a third person to pay the debt of another, on forbearance of suit, without a stipulation on the part of the promisee to forbear, or some other new consideration, is not valid. 1 Wms. Saund. 211. a. Com. Dig. tit. Action upon the case upon Assumpsit. B. 1. 2. In this case, there was proved a promise of forbearance, commensurate with the defendant's guaranty. If there be any objection, it is not to the sufficiency of the evidence, but to the deficiency of the allegation to authorize its admission. It is not necessary, perhaps, to express an opinion on this point, although I entertain no doubt [84] concerning it. 2 Chitt. Plead. 81, 2. Lent & al. v. Padleford, 10 Mass. Rep. 230. On the trial, no objection was made to the competency of the evidence; and if it were inadmissible, inasmuch as the jury have found the requisite facts, and the question proposed may fairly be raised, by a writ of error, brought to try the sufficiency of the plaintiff's declaration. I would not, for this cause, grant a new trial.
The second question, whether the consideration not being in writing, the case is within the statute of frauds and perjuries, is attended with no intrinsic difficulty; but some embarrassment arises from certain determinations, which, in my judgment, cannot be supported. I will first consider the point of enquiry on principle, and will then recur to the decided cases.
The statute 29 Car. 2. c. 3. s. 1. undoubtedly gave rise to our statute of frauds and perjuries; and between these laws there is no difference in expression, except that the word "contract" in ours, immediately preceding the term "agreement," in the latter clause of it, is not in the English law.
It is particularly observable, that the precise mischief, which the statute was intended to remedy, can only be ascertained, by the words of the law, and the exposition of it in practice. Had there been a preamble to the act, designating the inconveniences of oral testimony, and pointing out fraud in the proof of the consideration of a contract as one, there would be a certain object to guide us in its construction. The law, in this event, must have been liberally expounded in suppression of the existing mischief. But there is no preamble, nor any other indi-ciuni, except the words of the act, and the practical construction of it, to aid in its interpretation; and in the absence of fact, it is clearly inadmissible to imagine at what precise inconvenience the statute was aimed, and then to expound it coextensively with the position assumed. At common law, the consideration of all written unsealed promises may be proved by parol; and whether the statute of frauds and perjuries has made an exception to this general principle, is the great object of enquiry.
The first expression in the statute is, "that no suit in law or equity shall be brought on any contract or agreement." The words "contract" and "agreement" are used synonymously, and are followed by this phraseology "whereby to charge the defendant on any special promise". The expression "special promise" most obviously is applied to the same subject, and [85] with the same extent, as the preceding words "contract or agreement." The word "special" has no other effect than to shew, that promises in fact were referred to, and not promises implied bylaw; for every actual promise is particular or special. The statute, then, comprising the same ideas it now does, might have been thus expressed; whereby to charge the defendant on any promise, except a promise in law. But a promise is distinct from the consideration on which it is founded; and of consequence, the statute regards promises only, and not their consideration.
As the term "agreement" has been made; by those who insist that the consideration is required to be in writing, the essential criterion of the legislative intent. I will attend to it particularly; and the enquiry will result in this; that in its usual popular signification, it is synonymous only with promise, and, at least, that it is very ecpiivocal, like other terms comprising different meanings, according to the subject matter to which it is applied. If this proposition is established, it will make way for the application of a principle, conclusive on the subject of enquiry.
The philological discussion, on which I am now entering, in order to ascertain the precise meaning of the term "agreement," may be thought too particular; but a full and prominent view of this subject is of fundamental importance, and very necessary to a correct construction of the statute.
The word "agreement," in its popular and usual signification, means no more than concord; the union of two or more minds; or a concurrence of views and intention. The remote, or proximate, or any possible cause or occasion of an agreement, is a distinct thing, which, with little power of discrimination, every mind can perceive. This concord or union of minds, may be lawful or unlawful; with consideration, or without; creating an obligation, or no obligation. Still, by the universal understanding of mankind, proved by daily and hourly conversation, it is an agreement; and it is not the less so, because it is opposed to law, or even to good morals. Thus mankind agree to form friendly societies; to do good; to perpetuate evil; to fight; to perform services; and with no other inaucement man the propulsion at their wills. In short, every thing done or omitted, by the compact of two or more minds, is universally and familiarly called an agreement, by every one, who understands the use and meaning of language. Of this [86] every person has intuitive evidence, and frequently employs the term in question to manifest that operation of minds, denominated mutual assent. Whether a consideration exists, is a distinct idea, and enters not into the popular meaning of the term. In most instances, any consideration, except the voluntary impulse of minds, cannot be ascribed to the numberless agreements, that daily and hourly are made. For example, A., without any consideration, promises, in writing, to pay B. 1000 dollars, and B. accepts the promise. Is not this, by the universal assent of all, both learned and unlearned, an agreement? Do they not call it such? Or, do they wait to see whether it is on consideration, before they venture to give it this denomination? No one will be so absurd as to pretend it. In Wain v. Walters, 5 East 10.17. it was said, by Lord Ellenborough, that the word "agreement," in a loose and incorrect sense, is sometimes used as synonymous with promise and undertaking, but in its more proper and correct sense, as signifying a mutual contract on consideration between two or more parties. But the word "agreement," with much deference to the learned and able jurist, I affirm, is, beyond all comparison, used more frequently to denote a mutual assent of minds without legal consideration, (such as his Lordship intended,) than it is to denote the promise or undertaking of one; and for the truth of this assertion, I appeal to every mind. This is a subject as level to the capacity of an ignorant, as of a learned man, and presents this sole enquiry; in what manner do mankind promulge that operation of minds, denominated mutual assent? Is it not by the term "agreement"? Are there not hundreds of instances, in which persons are said to agree, where no legal consideration exists, to one, where there is such consideration? Most unquestionably. This fact conclusively shews the broad error of Lord Ellenborough's remark. With the usual felicity of discrimination, for which that learned judge was distinguished, his mind would have perceived, that he blended together two distinct subjects; that is, an agreement, and the cause or consideration inducing it.
I have hitherto made enquiry into the popular or general signification of the word "agreement," and have shewn, in its broad and comprehensive sense, demonstrated by universal usage, it is synonymous with the concord of two or more minds, or mutual assent. This word, like many others, is sometimes restrained or limited, by the subject of its application; and [87] hence the propriety of the rule, that words are to be construed in reference to their subject matter. The law of Edward III., forbidding all ecclesiastical persons to purchase provisions at Rome, did not prohibit the buying of grain and other victuals; but made to repress the usurpations of the papal see, it was aimed solely at those nominations to vacant benefices, which were called provisions. The subject demonstrated the intendment of the law. Upon the same principle, if the enquiry be made, whether there exists an agreement, which the law will enforce, the subject matter limits the signification of the term agreement," and gives it a new and peculiar meaning. The question does not regard the broad and comprehensive intendment of the term; nor its usual and popular acceptation; but the object of enquiry is, an agreement of a special nature, distinguished by a legal consideration, and enforcible in a court of justice. If the question be asked relative to a foreigner and pauper, in order to ascertain where he dwells, whether he is an inhabitant of a certain town, in which he has resided for years, without property or admission by authority, an affirmative answer is given to this enquiry without hesitation. But if the object of the enquiry be, to determine whether he is a settled inhabitant, to the same question is given a negative answer. A person speaks of inhabitants, and without a knowledge of the purpose in view, the term will be considered in its usual and most comprehensive sense, as synonymous with residents; but as soon as it appears, that legal inhabitants were intended, the word will be restrained and limited in its signification to those who possess this characteristic. The same observation is equally applicable to a law, which declares that agreements of a certain description shall be in writing. The mind, influenced by the popular and most familiar use of the term " agreement," considers the law as pointing to promises only; but if, from any source it appear, that the consideration was meant to be embraced, the peculiar and technical sense of a legal and sufficient contract, is seen to have been intended.
If I am right in my construction of the term in question, it settles the point under consideration. The word "agreement," if there be nothing to limit its meaning, regards promises only, and not their consideration.
It already has been remarked, that the law has no preamble, pointing out the mischief at which it was aimed. That parol testimony, in the establishment of certain contracts, had been [88] productive of inconvenience, is perfectly obvious ; but whether the inconvenience existed in the proof of promises, or of their consideration, or of both, the law furnishes no light to determine. Proof of the consideration of a contract, in most cases, is not as liable to fraud and perjury, as the evidence of the promise is. Considerations most generally are palpable, the subject of sight and delivery; while promises are invisible, the operation of the mind only, communicated by speech. The detection of false testimony, in the former case, is more easy, than in the latter; and the temptation to deceive is much increased, when the evidence is conversant concerning language only. For the same reason, the mischiefs in the proof of considerations, if any existed, may have been greatly inferior to those, which attended the proof of promises. It must, however, be admitted, that the inconveniences, in both cases, may have been such as to demand a remedy; or the legislature, perceiving a difference in this particular, may have believed, that if written proof was required of the promise to pay a debt, which the person promising was under no moral or legal obligation to pay," the establishment of the consideration might safely be left to common law testimony. Hence, it is certain, that the nature of the inconvenience demanding redress, and the extent of the legislative remedy, are not ascertainable from the statute, for the want of a definite exhibition of the object, to which the law was directed.
Is there, then, no fact, from which we can perceive the mischief contemplated, and the bounds of the prescribed remedy ? Undoubtedly, there is such a fact; and likewise, there are established principles of law, which conduct the mind to the most satisfactory result.
From the 29 Car. II. (anno 1676,) when the statute of frauds and perjuries was enacted, to the year 1804, when the first judicial decision was made, requiring the consideration, as well as the promise, to be in writing, a period of nearly one hundred and thirty years, no doubt existed, that a written promise alone was prescribed, and not a written consideration. By Lord Chancellor Eldon, it was said, that until the case of Wain v. Warlters, before alluded to, "we had always taken the law to be clear, that if a man agreed in writing to pay the debt of another, it was not necessary the consideration should appear on the face of the writing." 15 Ves. jun. 286. A similar observation was made by Ch. J. Parker, in Packard v. Richardson & [89] al. 17 Mass. Rep. 129. Conformably, with these opinions, wherever the above law existed, in England and in the United States, so far as the point can be ascertained, the practical construction of it was uniform, regardless of the consideration, to commit the promise only to writing; and this during four successive generations of men. The surprise excited in Westminster-Hall, at the determination of Wain v. Warlters, is a convincing proof, that the above-mentioned fact was perfectly understood, by the most learned lawyers. For more than a century, I am not aware, a whisper was heard, that by committing the promise only to writing, the legal requisition was not observed.
To the fact believed to be established I subjoin the principle, expositio contemporanea estfortissima in lege. The maxim rests on this unquestionable truth, that the persons living at the time when a law is enacted, are better able to ascertain the mischief at which it was aimed, and consequently, the legislative intent, than those persons are, who come into existence at a period remotely subsequent. Hence, if the language in ancient charters has become obscure from antiquity, or the construction is doubtful, the constant and immemorial usage under the instrument, may be resorted to, for the purpose of explanation; and in the case of an act of parliament, universal usage is a proper expositor, where the language is, in any respect, ambiguous. Rex v. Varlo, Cowp. 248. Sheppard v. Gosnold, Vaugh. 169. Rex v. Scott, 3 Term Rep. 604.
I conclude, then, under this head of argument, that the words of the statute of frauds and perjuries, expounded by long and universal practice, leave no reasonable doubt regarding its construction.
I now come to the determinations of courts; and I begin with the celebrated case of Wain v. Warlters, 5 East 10. A promise to pay the debt of another, was made in writing, but not the consideration. The court adjudged, that the case was within the statute of frauds and perjuries. In expressing his opinion, Lord Ellenborough first referred to the definition of an agreement by Comyns. (Dig. tit. Agreement. A. 1.) that there is aggregatio mentium-when two or more minds are united in a thing done, or to be done, or where there is a mutual assent to do a thing. Every person of the least discrimination must perceive, that the united mind regards, not the consideration, but the object or purpose of the contract only. It is the mutu[90] al assent to do an act, that forms the distinctive property of the definition, without reference to the legal inducement necessary to give the agreement validity.
His Lordship next observed, the agreement ought to be so certain and complete, that each party may have an action on it; and in support of this remark, referred to Plowden's Commentaries. Plowd. 5. a. 17. In the authority referred to, it is extremely obvious, that the popular meaning of the word agreement was not given, but merely what agreement will sustain an action. The case to which Plowden refers, is Reniger v. Fogossa, in which no point of law is determined, but judgment was rendered against Reniger, by force of the privy seal; and accordingly, an order was sent from the exchequer to surcease all process against Fogossa. The case, then, proves nothing. The reference, undoubtedly, was to the argument of the solicitor-genera], which, certainly, is no authority; nor did even his argument bear upon the point now under discussion. The question arose upon the traverse of an agreement made with the collector of subsidy, to land certain goods, and the weight being ascertained, if any duty was unpaid, to make payment of it. The promise was proved; but as there was no consideration for it, the solicitor-general insisted, that in law it did not support the agreement relied on. From this short statement of the case, it appears, that the enquiry had no relation to the popular meaning of the word agreement, but to its peculiar signification, when pleaded by way of defence, for not having paid the duty of impost.
A case from Dyer 336. b. is next cited (Calthorpe's case,) which, according to the report, was argued "at the bar, pro et contra, but not at the bench." No opinion was expressed by the court. An undecided case furnishes neither light nor authority.
The meaning of the term agreement, is next discussed. "In all cases," said Lord Ellenborough, "where by long habitual construction, the words of a statute have not received a peculiar interpretation, I am always inclined to give them their natural, ordinary signification. The clause in question in the statute of frauds has the word agreement; and the question is, whether that word is to be understood in the loose, incorrect sense, in which it may sometimes be used, as synonymous to promise or undertaking, or in its more proper and correct sense, as signifying a mutual contract, on consideration, between two [91] or more parties. The latter appears to me to be the legal construction of the word." Notwithstanding the great deference I entertain for the opinions of the learned and able judge above-named, there is nothing in his remarks satisfactory to my mind. The ordinary signification of the word agreement he professes to give, but he has not given it; and as to the "more proper and correct sense," that is the most proper and most correct, which expresses the meaning of the person using it. On this subject, there is but one acknowledged principle, and that is, what signification is stamped on a term by usage. Usus est jus et norma loquendi. It is usage that teaches men how to speak, and how to be understood; and I am not aware of any usage, that incorporates an agreement and its consideration in the former term, except where the word is employed technically to indicate an actionable contract. It would seem as if, unconsciously, his Lordship had first fixed in his mind the technical sense of the term agreement, and then had brought the words of the statute to this test. But the opposite is the correct course. The sense must be derived from the meaning of the word, instead of moulding the term, by a preconceived intendment of its sense. This, and this only, is interpretation.
The object of the law, and that it was to suppress fraud and perjury in the consideration of an agreement, as well as in the promise, is glanced at; but what the object was, is no otherwise established, than by the cases in Plowden, and Dyer before-mentioned, and commented on, and by the brief dissertation recited on the meaning of the word agreement.
This case excited no little surprise in Westminster-Hall; and has been doubted, by the soundest lawyers and ablest judges. Norris v. Stacey, Holt's N. P. Rep. 153. Ex parte Minet, 14 Ves. jun. 190. Ex parte Garden, 15 Ves. jun. 286. As late as the year 1818, in Goodman v. Chase, 1 Barn. & Ald. 301. the question under discussion was raised, and by Lord Ellen-borough it was said: "It would be very desirable to have a fuller examination made into the decissions on the other side of the Hall, where these cases more commonly occur than here." From this expression it may not unfairly be inferred, that the mind of his Lordship was not conclusively settled on the subject of discussion.
In the case of Egerton v. Mathews & al. 6 East 307, it became necessary to fix the meaning of the term bargain, in the 17th section of the statute of frauds; and, with Lord Ellen-[92] although at their head, the court determined, that this word was not coextensive with agreement, and that the consideration of the contract need not be in writing. To this opinion I cannot accede. The word bargain is equivalent to the expression mutual agreement; and if I were disposed to make a diversity of signification between the two words under consideration. I should be inclined to say, that the term bargain more prominently brings into view the mutuality of contract between parties, than the word agreement. If the determination in Egerton v. Mathews was right, I am persuaded, that the decision in Wain v. Warlters, was wrong.
In the late case of Saunders v. Wakefield, 4 Barn. & Ald. 595 the doctrine in Wain v. Warlters was recognized, and the point probably is at rest in Westminster-Hall. On a particular examination of the last decision, nothing material is added to the argument of Lord Ellenborough, in the former case; and I shall pass it by, without further comment.
On a review of the determinations in Westminster-Hall, I feel myself at liberty to say, that there is nothing in them so authoritative and convincing as to affect an unbiassed consideration of the question now under discussion.
On the authority of Wain v. Warlters, the supreme court in the state of New-York, in Sears v. Brink, 3 Johns. Rep. 210. made a similar determination. With a learned judge in a neighbouring state, (17 Mass. Rep. 137, 8.) I enterely concur in the opinion, that respect for the decisions in Westminster-Hall, habitually and wisely indulged, with a want of information, that the case then recently determined there, was doubted by the profession, most probably led to the determination of Sears v. Brink. The argument of counsel, without any super-added discussion, referred to the English decision; and the determination of the court, very briefly expressed, was founded precisely on the same reasoning. At the time of this determination, Ch. J. Kent was a member of the court, and assented to it. But under the influence of that ceaseless enquiry, for which he has ever been highly distinguished, and of that regard for legal truth that never fluctuates, the same learned judge, in Leonard v. Vredenburgh, 8 Johns. Rep. 29. three years after the decision in Sears v. Brink, declared his dissatisfaction with the determination in the latter case.
In Packard v. Richardson, 17 Mass. Rep. 122. it was decided, by the supreme judicial court in Massachusetts, that a promise [93] in writing to pay the debt of another, is a compliance with the Statute of frauds, without any recital in writing of the consideration, on which the promise is founded. The very learned and elaborate opinion of Ch. J. Parker establishes the point of this decision beyond all reasonable controversy.
Whether the contract proved supports the one averred in the plaintiff’s declaration, is the only remaining enquiry.
The declaration is founded on an absolute promise to pay the money in question with interest, at the expiration of a year. The promissory note before-mentioned was indorsed in the following words : “ I guaranty the payment of the within note one year from the date.” It is most obvious, that the promise is not absolute, but conditional. It is not a promise to pay, but to guaranty the payment of a note; the contract being to this effect-that the payment shall be made, by the maker, or on reasonable notice of default of payment, the assurer will be personally responsible. Contracts of guaranty, like all other commercial contracts, are to be construed liberally, in furtherance of the intention of the parties ; but they must not be extended beyond the reasonable interpretation of the terms, in which they are expressed. This would be to annul the language of the person promising, and expunge from consideration those signs of intention, on which both parties have relied, as the evidence of their meaning. A promise to pay a sum of money, is an agreement to perform an act, in a manner the most absolute and unqualified. But a stipulation to assume the payment of another person’s note, necessarily implies a condition, which the nature of the case renders perfectly intelligible. The promise is merely this ; if the maker of the note does not pay you, according to his engagement, which presupposes an unsuccessful demand of payment, and notice of such demand, then I will pay you. This is the contract always assumed, by the indorser of a negotiable note, to whom the same is payable. Had the indorsement been in blank, except only a dispensation from suit against the maker, the construction of the contract would have been the same it now is. It is this dispensation from the bringing an action against the maker, that fixes the exposition of the engagement. Without this, were the indorsement in blank, it would only assume the responsibility of the maker, on suit. But his ability to pay, cannot avail the indorser in blank, if the creditor is not obliged to institute an action against him, precedent to the breach of contract. The nature [94] of the case indicates, as well as the word employed, that the payment, at the expiration of a year, was the turning point, on which the guaranty was suspended. Had the indorsement stipulated, as the one in Williams v. Granger, 4 Day 444. did, not the ability of the maker only, but the advancement of the money on a day prefixed, the contract would have been absolute.
Between the averment in the plaintiff’s declaration and the proof there is a manifest variance ; and for this cause, I would grant a new trial.
Brainard, J. was of the same opinion.