Nichols, Shepard & Co. v. Allen

Cornell, J. By a fair construction of the complaint in this case the contract of guaranty sued on was founded on a new and original consideration between the guarantor and guarantee, and is, therefore, not within the statute of frauds, which requires the consideration of every agreement to answer for the debt or default of another to be expressed in writing. Leonard v. Vredenburgh, 8 John. 29 ; Mallory v. Gillett, 21 N. Y. 412. The contract sought to be enforced against the defendant is one whereby he guaranteed the collection of a certain note given by one Robbins; in other words, he undertook and promised to pay the note in case the same could not, [285] upon its maturity, be collected of the maker by due course of law and by the exercise of due diligence. As appears from the face of the complaint, the note fell due January 1, 1874. Judgment was obtained against Nob-bins for the balance due on it, on July 10, 1874, in the district court of Freeborn county, and docketed in that county the same day. Execution was thereupon, on that day, duly issued, as is averred, to the'sheriff of Faribault county, and afterwards returned unsatisfied, and it is also averred that “ said judgment remains” (at the time of making the complaint, November 21, 1874,) “wholly unpaid, unsatisfied and uncollectible from said judgment debtor.” It does not appear where the said Nobbins resided at the time he gave the note or at any subsequent time. It does not appear when the suit was commenced in which the judgment rendered July 10 was obtained, nor is it stated that the judgment was ever docketed in Fairbault county. No facts are stated showing the insolvency of the maker of the note, nor any reason why the note was not collectible at any time after its maturity. The averment that the judgment recovered in July remained unpaid and uncollectible on the 21st day of November does not negative the fact that it could have been collected at any time prior to that month. The issuance of an execution to a county different from that wherein the judgment was rendered and docketed, and where, for aught that appears, the judgment debtor did not reside, and its return unsatisfied, is no evidence that the judgment might not have-been collected, provided the execution had been properly issued to the officer of the county wherein it was docketed, or to the county where the judgment debtor resided. For these reasons the demurrer should have been sustained. Order reversed.