Potter v. Gronbeck

McAllister, J. If the execution of the lease and guaranty had been completed by signing and delivery, before the act of revocation on the part of Le Yin, by notice of his withdrawal given to both Sylvan, the lessee, and the lessor, we are of opinion that both said instruments being under seal, such act of revocation would have been nugatory and ineffectual. 2 Pars. on Con. 31, and cases in notes. But it was shown, by a preponderance of the evidence, that Le Yin revoked and withdrew from the transaction before the execution of either the lease or guaranty was com¡fieted by signing and delivery; and that the lessor, through the plaintiff, then the authorized agent of the lessor, and the Sylvans, the lessees, assented to such revocation before the execution of the instruments or cither of them had been completed by delivery. At that stage of the transaction, we think it was entirely competent for Le Yin to revoke his mere act of signing an undelivered instrument of guaranty, he' having received no consideration whatever therefor. Afford v. Davies, 12 J. Scott, N. S. 104; E. C. L. 747; Hunt v. Roberts, 45 N. Y. 696; Brandt on Suretyship and Guaranty, § 114. The other parties to the guaranty, who signed and delivered without any notice of Le Yin’s revocation and withdrawal, were not hound. At all events there was no joint liability and the court below v as justifiable in finding for the defendants. We find from examination of the supplemental hill of exceptions, obtained by appellant’s counsel, that the judge does not say that he did not take the evidence upon the question of the revocation into consideration, in forming his conclusions upon the facts, but he says he did not take it into consideration in tmnouncing his conclusions. The evidence was conflicting it is true, but upon a close scrutiny of it, we are satisfied that the clear weight and preponderance of it were with the defendants, and that the judgment below should be affirmed. Affirmed.