Dyer v. Gibson

By the Court, Dixon, C. J. We cannot discuss the question whether the promise of one person, though in form to answer for the still subsisting debt of another; if founded upon a new and sufficient consideration moving from the creditor and promisee to the promisor, and beneficial to the latter, is within the statute of frauds and therefore void, unless it be in writing and expressing the consideration, and subscribed by the party making it. Decision has multiplied upon decision, with scarce a syllable of conflict, for more than a century, that such a promise is not. reached by the statute ; and it is now too late for discussion, Mallory vs. Gillett, 21 N. Y., 412, and the cases cited: Cardell vs. McNeil, Id., 336; Nelson vs. Boynton, 3 Met., 396, and cases cited by counsel for present respondent. The distinction is between cases where the per son promising, has for his object a benefit accruing to himself, in which the original debtor has no interest, and from which he derives no advantage, and when his primary and leading object is to become surety for the debt of another without without benefit to himself, but for the exclusive advantage of the other parties to the contract. The former is regarded as an undertaking by the promisor to answer upon his own contract or to pay his own debt, being a guaranty in form merely, and not within the intent of the statute ; the latter as a purely collateral agreement, and void unless the requirements of the [561] statute are complied with. Some expressions to be found in Emerick vs. Sanders, 1 Wis., 77, wbicb seem not to have been called for by tbe case, might be supposed to indicate that this court was of a contrary opinion, and that cases of the first class are also within the statute ; yet the case closes with this language, showing clearly that the court took no such view of the law: “We conclude that the object of the statute will be best carried out by requiring all agreements to pay the still subsisting debt of another, to be evidenced by writing, unless such subsequent agreement or promise be founded upon a new and independent consideration, passing between the newly contracting parties, and independent of the original contract.” The agreement set forth in the complaint in this action is precisely of this nature, and is not, therefore, void because it fails to express the consideration upon which it was made. It need not have been reduced to writing at all; but being so and the consideration not stated, it might have been made out by proof aliunde, in an action brought upon it. This seems to put an end to the action. It was commenced to enforce the plaintiff’s equitable lien as vendor, upon the theory that the guaranty was void, and that he might fall back at once upon the consideration, and enforce payment out of the premises conveyed. But the guaranty, is a guaranty of collection, not of payment. There are many cases which hold, and the better rule seems to be, that upon such a guaranty the dilligent prosecution of the original debtor by the usual legal remedies, and without effect, is a condition precedent to the right to resort to the guarantor. Cumpston vs. McNair, 1 Wend., 457; Burt vs. Horner, 5 Barb., 501; Day vs. Elmore 4 Wis., 193—4; Thomas vs. Woods, 4 Cow., 173; Taylor & Otis vs. Bullen, 6 Cow., 624; Moakley vs. Riggs, 19 Johns., 69; Eddy vs. Stanton, 21 Wend., 255; Dwight vs. Williams, 4 McLean, 581. In the two first cases, the words indorsed on a a promissory note, “ I guaranty the collection of the within note,” was held equivalent to a guaranty that the note was [562] collectible by due course of law. In the three last, it was determined that insolvency of the maker of the note was no excuse for a neglect to attempt the collection by legal process. In McDoal vs. Yeomans, 8 Watts, 361, and Wheeler vs. Lewis, 11 Vt., 265, a contrary doctrine was held, and insolvency of the maker decided to constitute a valid excuse. But upon this subject we express no opinion, since, if it were a guaranty of payment instead of collection, it would seem to be entirely without the scope of the action to permit a recovery. The complaint proceeds solely upon the ground that the guaranty was void, and that the defendant fraudulently induced the plaintiff to accept it. Order affirmed.