Williams v. Marshall

42 Barb. 524, 1864 N.Y. App. Div. LEXIS 80

• Court: New York Supreme Court
• Decided: November 7, 1864
• Status: Published

Opinion

By the Court,

Clerke, J. I.

It is objected, that, because in the body of the instrument in question the name of the principal is inserted as one of the obligors, it ought to have been subscribed by him, in order to make it binding on the sureties. The omission of the principal to sign the instrument operates in no respect prejudicially to the latter. In the recital, they declare that they contract as sureties, and that William H. Hadley is principal; so that if he had signed it, his relation to them, or to the vendor of the goods, would be, in no degree, different from what it now is. In either case they would be only liable conditionally; that is, in case Hadley failed to pay for the goods to be sold or delivered to him by the plaintiffs. This being the case, there can be no valid reason why the instrument should be deemed void. It has never been successfully claimed, even 'if there were a hundred names recited as obligors in the body of the instrument, and some of them failed to subscribe to it, that therefore.those who did sign it were exonerated from liability.

II. The instrument states that the obligees shall be liable for goods sold or delivered unto Hadley, instead of to be sold or delivered. Undoubtedly the consideration in every guaranty must be executory—that is, it must be for something to be done; otherwise, it is insufficient. But the language employed in this instrument does not import the past tense. The guarantors bind themselves for all claims for maps, books or other publications sold or delivered unto Hadley, within three months from the date of invoice or delivery, &c. evidently referring to a future invoice or delivery. Besides, the plaintiffs, in proving the delivery of the goods to the principal, showed that they were delivered after the execution of the guaranty, and in consequence of it.

[New York General Term, November 7, 1864.

III. It was objected, also, that it does not appear that the consideration moved to the guarantors—that it was solely to the principal; as all elementary writers on this relation of principal and agent say, whatever would be sufficient as a consideration in the case of any other kind of contract is sufficient in the case of a guaranty; and any act in the nature of a benefit to the person who promises, or to any other person upon his request, is sufficient.

Ás I deem the consideration expressed in this instrument sufficient, it is not necessary to consider whether it is a sealed agreement. Regarding it as a simple contract of surety, the consideration is sufficient; if insufficient, it would have been proper to inquire whether it was a sealed agreement, as it is well established that such an instrument is not within the statute of frauds, requiring the consideration to be expressed. The seal imports a consideration.

IV. As to the point that the sureties were released by extending the time of payment to the principal, it is clear, that no extension was agreed upon finally by the creditor and the principal. The latter, indeed, asked further time and the former offered to grant it on certain conditions, which were refused, and the offer was rejected.

The judgment should be affirmed, with costs.

Leonard, Gierke and Sutherland, Justices.]