Wilson Sewing Machine Co. v. Schnell

By tKe Court. Ripley, Ch. J. There is no question, upon the face of the complaint, that the obligation of the Gron-wolds is to answer for a debt of 'Schnell’s, for which Schnell continues liable. The complaint states that it was given to induce plaintiff to part to Schnell with the consideration of the note. As he was and is liable thereon, the obligation of the Gronwolds is within the Statute of Frauds. Birkmyr v. Darnell, Salk. 27; 2 Smith Lea. Ca. 311; Forth v. Stanton, 1 Saunders, 311. It was given upon a sufficient consideration but must not only be in writing, but must express the consideration. Gen. Stat.,p. 334, sec. 6. It is, briefly, a promise to. pay the plaintiff $500, if Schnell does not “ redeem ” a note for $500 in favor of plaintiff, dated April 20, and which expires Aug. 20. It is not necessary that the consideration should appear in express terms. It would undoubtedly be sufficient in any case, if the memorandum is so framed that any person of ordinary capacity must infer from the perusal of it, that such, and no other, was the consideration upon which the undertaking was given. Not that a mere conjecture, however [46] plausible, would be sufficient to satisfy the statute, but there must be a well grounded inference, to be necessarily collected from the terms of the memorandum. Hawes vs. Armstrong, 1 Bingham, N. C. 761; see also Caballeno vs. Slater, 14 Com. Bench, 300. Perhaps it would not be going too far to say that the obligation refers in terms to a note signed by Sehnell. Such seems to be the fair inference from the use of the word “ redeem.” Assuming this, however, the obligation, in itself, states no consideration for the Gronwolds’ promise. On the contrary, while it is undated, referring, as it does, to an existing note of Schnell’s, the just inference is that the note had been already given, and also, of course, that the consideration thereof was past at the time of the making of the promise sued upon, and such a consideration would not support it. Parol evidence, however, is admissible to show the circumstances under which the guaranty was given. Goldshede v. Swan, 1 Exchequer, 154. It may be shown, therefore, by parol, that the obligation was executed and delivered at the same moment of time with the note to which it refers. That being so, we think the weight of authority is in favor of the proposition that the objection that the consideration is not stated, does not apply to a guaranty of anote, when the written promise of the debtor sets forth a consideration, and the guaranty refers to the original indebtedness and is made and delivered at the same time therewith. Nabb v. Koontz, 17 Md. 253 ; Church v. Brown, 21 N. Y. 315, per Comstock, Ch. J. We do not see how the last case is to be otherwise understood than as disapproving and virtually overruling Brewster v. Silence, 4 Seld. 207 ; Draper v. Snow, 20 N. Y. 30. Assuming, however, that the Gron-wolds’ promise does refer, in terms, to the note set out in the complaint, it nowhere appears that it was made and delivered [47] at the same time therewith so as that both were one transaction. ' Schnell’s note is dated April 20, 1871. The complaint states that it was executed and delivered “ on or about April 20, 1871,” and that the defendants’ obligation was executed and delivered “ at the date last aforesaid.” The date last aforesaid is April 20, 1871. The complaint, therefore, does not even allege that the two papers were executed and delivered on the same day, much less simultaneously. It also states, indeed, that the defendants’ promise was made to induce plaintiff to part with' the consideration of the note, and as security therefor. The note, however, must (from the terms of the promise itself,) have been already in existence, and the word “ redeem” seems necessarily to imply that it was already in plaintiff’s possession. Although, therefore, the allegation quoted be held to imply that the consideration of the note had not yet been advanced, there is nothing in this circumstance to show that the execution and delivery of the two papers was one and the same transaction. Neither, in itself, then, nor as viewed in the light of the surrounding circumstances as expressly stated in or even as inferable from the complaint, is there anything from which a just inference can be drawn that the consideration of the note was that, and no other, upon which the undertaking of the Gronwolds was made. The invalidity of the promise, under the statute, in not stating a consideration, is as apparent upon the face of the, complaint, as the fact that it is a promise to answer for Schnell’s default. It is as demurrable as it would have been if- it had set out a verbal promise stating a good consideration. Brown Stat. Frauds, sec. 508, 509, and cases cited ; Lawrence vs. Chase, 54 Maine, 196. The order appealed from is affirmed.