Perkins v. Adams

The opinion of the court was delivered by Piisrpoint, J. This was an action brought on a guaranty. The guaranty was indorsed on the back of an order. The order was as follows: “ Give H. Adams forty dollars.” Signed, Patrick Mularkee. To H. O. Perkins. Rutland, April 20, 1853. The guaranty was indorsed on the order, and is as follows : “ I will see this made good to II. O. Perkins.” Signed, II. Adams. The case shows that on the trial below the plaintiff introduced such order and guaianty, and p>arol evidence to show that at the time the order was received by him, he paid the amount of it to the defendant upon his executing to him the guaranty, and that it had not been paid. The defendant then offered the evidence detailed in the bill of exceptions, to which the plaintiff objected. The objection was overruled and the testimony admitted. It is now insisted on the part of the plaintiff that this testimony should have been rejected, as tending to' add to or vary the contract or guaranty. In order to determine this question, let us see what this guaranty [232] is. When read in connection with the order to which it is attached, it should be read thus: I will see this (order) made good to H. O. Perkins. This alone does not constitute a contract or agreement within the legal meaning of those terms. It is a bare naked promise, on which no action can be maintained. On the face of it, it is void for the want of consideration; this the plaintiff was aware of, and therefore introduced parol evidence to show upon what consideration it was in fact executed. The plaintiff having introduced this evidence, it was certainly competent for the defendant to introduce parol evidence to contradict the testimony of the plaintiff — to show that there was no consideration, or a different one from that claimed by the plaintiff; and when the real consideration is established, we then have the contract on which the action is based, and in determining what the nature of that contract is, we are to take into consideration the unwritten as well as the written part of it. In this view of the case we think the testimony was properly admitted, and having been admitted, it was for the triers to determine, on consideration of all the testimony, what the nature of this guaranty was; and if they found that it was not an absolute and unconditional undertaking, as claimed by the plaintiff, we certainly cannot say that they had no evidence on which to base such a determination. Then the question is, was this guaranty fulfilled ? We think that, if the county court found the contract to be such as the testimony introduced by the defendant tended to show (and we are to presume that it did), the guaranty was fulfilled. The-plaintiff had the funds of Mularkee in his hands, which he agreed, as a part of the consideration on which the guaranty was executed, to apply in satisfaction of said order, in case he was relieved from liability on certain executions against Mularkee; these executions were subsequently satisfied by other property of Mularkee, and the funds applied by the plaintiff upon other debts the plaintiff had against him, and we think he was bound, as between himself and the defendant, first to apply so much of these funds as would pay the order and discharge this guaranty. Having failed to do so, he cannot now recover upon it. The judgment of the county court is affirmed.