Antisdel v. Williamson , 55 N.Y.S. 1028 ( 1899 )

Adams, J.:

The defense to this action was founded upon two allegations, namely, a want of consideration for the contract of guaranty, and the discharge of the parties obligated thereby by reason of an extension of the time of payment of the principal debt.

Upon the trial the plaintiff made the usual formal proofs and rested her case. The defendants thereupon gave evidence which tended to prove that they received no consideration whatever for executing the contract of guaranty, and that subsequent to its execution the terms of the contract to which the guaranty applied had been altered without their knowledge or consent at the time and in the manner specified in the foregoing statement of facts.

No oral proof whatever was offered by the plaintiff to meet this evidence, and the court was thereupon requested to direct a verdict in favor of the defendants. This request was refused and the jury were instructed by the learned trial justice that there were certain implications and inferences in the case which they had a right to consider in determining both questions of fact, which lié thereupon proceeded to submit to them; and the exception which was taken to this ruling of the trial court presents the real question in the case.

The seal which was affixed to the contract of guaranty was undoubtedly presumptive evidence of a consideration (Best v. Thiel, 79 N. Y. 15), and in view of the fact that Charles L. Parker, one of the parties to the contract and the one to whom the consideration, if any, probably passed, was, in consequence of his absence from the State, neither served with process nor sworn as a witness, it was probably competent for the jury to say whether that presumption had been overcome by the oral proof bearing upon that subject.

When, however, we come to consider the question relating to the change in the terms of the original contract, we fail to discover any evidence which tends in the slightest degree to contradict that given by the witnesses Chester L. and Angelina B. Ketchum, who testified in the most unqualified manner that in March or April, 1893, the time of payment of the mortgage debt, to secure which the guaranty in question was given, was extended for a period of three years upon condition that they would personally obligate themselves to pay the same, which they did, by joining in the bond, to that effect, bearing date April 2, 1893.

In this connection, however, it will he proper to consider the argument advanced by the learned counsel for the respondent in regard to the evidence to which we have just adverted; for while conceding his inability to meet the same with oral proof, he nevertheless insists that there was sufficient evidence in the case to raise an issue and to support the verdict rendered by the jury thereon. To sustain this contention he first calls attention to the fact that the condition of the Ketclium bond is that the obligors shall pay the Parker mortgage “ according to the terms thereof,” and it is argued that this means simply that the bond was a personal undertaking on the part of the Ketchums to pay the mortgage debt with interest when due, and that consequently the instrument itself was contradictory of the oral testimony of the parties who executed it. But in advancing this theory the learned counsel overlooks the fact that the mortgage fell due February 20, 1892, or more than a year prior to the execution of the Ketchnm bond, in consequence of which it is impossible that the language quoted from the latter instrument should receive the construction which he claims for it.

Again, it is urged that the defendants, by omitting to call Mr. Greenfield as a witness in their behalf, have permitted the jury to infer that his evidence, had he been sworn, would have been prejudicial to their interests. This contention does not impress us favorably. Mr. Greenfield was the attorney and agent of the plaintiff’s assignor, through whom it is claimed the agreement to extend the time of payment was entered into. There is nothing in the case, so far as we can discover, to indicate that he is in any wise hostile to the plaintiff. He lived but a short distance from the city of Rome, where this case was tried, and it was reasonable to suppose that he would have contradicted Mr. and Mrs. Ketchum had their evidence been untrue, and consequently we think that the plaintiff, and not the defendants, must suffer from whatever inference is to be drawn by reason of his absence at the trial. But it is said that the evidence of the Ketchums, even if true, proves nothing, for the reason that Greenfield had no authority from his client to extend the time of payment of her mortgage. We think, however, that for obvious reasons, this position cannot be successfully maintained. In the first place, it appears that Mr. Greenfield, as attorney of the mortgagee, was intrusted with the duty of making some arrangement with the owner of the equity of redemption whereby the mortgage upon her premises might be -paid or secured. If, therefore, he deemed it necessary in order to accomplish the object sought to grant an extension of the time of payment, his authority so to do would probably have been ample; “but it is to be remembered that both Mr. and Mrs. Ketchum testify that Mr. Greenfield wrote them that Mrs. Parker had consented to the proposed arrangement, provided they would execute the bond which he inclosed with his letter; and this, if true, would indicate that he was acting under express authority. His action, however, whether authorized or unauthorized, was subsequently ratified by his principal; for it is a conceded fact in the case that she accepted the Ketchum bond and thereafter received the interest upon her mortgage, which was thereafter regularly paid when due, until and including February, 1895, when Mrs. Ketchum removed from the premises.

Assuming then, as we think we are justified in doing, that the evidence of Mr. and Mrs. Ketchum stands without material contradiction, it follows that a valid extension of the time of payment of the principal debt by the plaintiff’s assignor was clearly established, for if the agreement was founded upon a valuable consideration, as it doubless was, it was not essential that it should have been reduced to writing. (Kane v. Cortesy, 100 N. Y. 132; Fish v. Hayward, 28 Hun, 456.)

It being likewise established, as it is beyond all contradiction, that the defendants’ relation to the principal obligation was that of sureties merely, and that they were in no sense parties to or even cognizant of the agreement entered into between Mrs. Parker and Mr. and Mrs. Ketchum, it would seem that, within the most familiar principles, there could be no question but that their liability under their contract of guaranty had been terminated by the action of the plaintiff’s assignor. (Page v. Krehey, 137 N. Y. 307; Shipman v. Kelley, 9 App. Div. 316; Livingston v. Moore, 15 id. 15.)

But it is insisted that the doctrine of these cases has no application, by reason of the fact that the agreement to extend the time of payment was not made with the principal debtor. It is true that Mrs. Ketchum was not a party to the original bond and mortgage and that she did not assume their payment when she purchased the premises covered by the mortgage. While, therefore, she was under no personal obligation to pay the same, she did purchase subject to the lien of the mortgage, and as the land upon which it was a lien was the primary fund for the payment of the mortgage debt, she-thereby, to a certain extent, occupied the relation of principal debtor, and so far as the rights of these defendants are concerned, any agreement entered into between her and the mortgagee would have the same effect as though in her purchase she had actually assumed payment of the mortgage. (Flower v. Lance, 59 N. Y. 603; Murray v. Marshall, 94 id. 611; Paine v. Jones, 14 Hun, 577.)

These.views lead to the conclusion that the defendants’ second! defense was so clearly established as to leave no issue for the consideration of the jury, and that the learned trial court was consequently in error when he denied the request of counsel to direct a verdict in favor of the defendants. For this reason we deem it. unnecessary to express any opinion as to the effect of the settlement and agreement, which it is claimed was entered into in April, 1890.

All concurred, except Ward, J., not voting.

Judgment and order reversed and a new trial ordered, with costs to the appellants to abide the event.