Mosher v. Hotchkiss

Leonard, J. There is not a single fact found by the referee in this case that indicates any defense to this action if it had been prosecuted by the Ontario Oounty Bank against the defendant. It is not competent for this court to explore the evidence to ascertain whether there are other facts which might have been found by the referee, and if found, would have authorized a discussion of the questions suggested by the exceptions taken to the conclusions of the referee. Whether or not the defendant paid any money to the Ontario County Bank, and when or for what purpose, and with what effect, it is not the province of this court to consider, as the defendant has not procured any report upon these facts. So far as the report speaks, it is adverse to the defendant on these questions. The fact that the Ontario County [592] Bank did not sell and transfer the lióte to the defendant before the sale to the plaintiffs, as found by the. reportáis in direct hostility to the claim of the defendant, that he had paid the note and satisfied it, or that it had beén transferred to him by the Ontario County Bank in such a manner as to raise any equities in his favor superior to the rights of the plaintiffs. Had the defendant considered these questions important, he could have procured the referee to have found specially upon the subject. Without such findings the questions sought to be raised are not before us. Grant v. Morse, 22 N. Y., 323 ; Phelps v. McDonald, 26 id., 82. It is said that the guaranty is void by the statute of frauds. A motion ivas made to dismiss the complaint, and an exception to the referee’s report was taken on that ground. The consideration named in the instrument is, “for value received.” This term has been held by this court to sufficiently express the consideration. Miller v. Cook, 23 N. Y., 495. The point was not argued by the learned counsel for the appellant, and the case referred to above is a sufficient answer to the objection. ■ Complaint is made that the judgment includes the costs .in the action against the makers of the note. The fact, although not stated in the report, may perhaps be ascertained from the amount stated. Ho liability arose on this instrument until after a failure to collect the amount due, by an execution against the principal debtors. This is the condition of the agreement by legal inference, unless the principals are shown to be insolvent. A guaranty of the'collection of a note is equivalent to, a guaranty .that it- is collectible by due course of law. Crumpston v. McNair, 1 Wend., 457. The effect of it is, that the guarantor requires an action to be brought against the principal as a condition of his becoming liable for the debt. The party guaranteed will [593] not receive the full benefit of the agreement unless the guarantor bears the expense of complying with the condition which he has imposed. The guarantor is liable, in such a case, for the costs. There is another sufficient reason for not disturbing the report on this objection. The plaintiff having collected a sum of money from the principal debtors, more than sufficient for the payment of the costs of the recovery against them, were entitled to apply so much of it as was necessary to cover the costs, before crediting anything on account of the debt for which the judgment was recovered. Where a sum of money has been collected by action against the principal debtor, the surety can have' no equity to demand that so much of the money as shall be necessary to pay the expense of the collection, shall be withheld from that object, and be applied exclusively to satisfy the principal debt. The creditor is entitled to the whole of his demand, and the expenses of collection were legitimately deducted from the sum realized by execution against the principal debtors. The counsel for the defendant has referred to several exceptions taken during the trials, as sufficient ground for demanding a reversal of the judgment, although no argument has been offered in support of them. 1st. The counsel for defendant moved to dismiss the complaint when the plaintiffs rested the case. All the facts reported by the referee had then been proven, but none of these set up as a defense. The previous examination of the report has made it appear sufficiently that the motion to dismiss was not well taken; and as the facts relied on as a defense had not then been proven in any manner, no review of the evidence will be necessary. The exception to the denial of this motion was not well taken. 2d. The defendant sought to give in evidence the conversations of himself and others with the officers of the [594] Ontario County Bank, and also the acts of those officers, occurring after. the sale and transfer of the note and guaranty to the plaintiffs. The evidence was excluded and the defendant excepted. The authorities applicable to this subject are numerous and plain. It requires no citation of them, nor any argument. The evidence' was res inter alios aeta, and was properly excluded. The judgment ought to be affirmed, with costs. All the judges concur, except Smith, J., who takes no part. Judgment affirmed.