Perkins v. Goodman , 1855 N.Y. App. Div. LEXIS 125 ( 1855 )

By the Court, Johnson, J.

The question put to the witness, as to what he told his father he wanted the writing for, when he obtained it, was proper, and the answer should- have been allowed.

The writing authorized the witness to use his father’s name to his (the son’s) agreement, without specifying the particular agreement intended. In such cases evidence of extrinsic or surrounding circumstances is competent to show what agreement the party giving the authority intended to have signed in his name. (1 Greenl. Ev. §§ 282, 287, 288.)

The referee also erred in holding, as matter of law, that the defendant McElrone was not a party to the agreement. His intention to be bound is manifest, from the fact of his signing as surety, with the other parties to the contract. He is therefore bound, although his name does not appear in the body of the contract. (Ex parte Fulton, 7 Cowen, 484. Thomas v. Gumaer, 7 Wend. 43.)

The undertaking of ,a surety who signs upon the face, or at the end of a contract, with the principal, although he add's the word surety to his name, is an original and not a collateral undertaking. It is not a promise to answer for the debt, default or miscarriage of another, but is an undertaking for a direct performance on his own part. ■ He becomes a party to the contract, and may be treated as principal .by the creditor, although he is a surety merely; as between him and the other party, with whom he jointly or severally undertakes. In such cases, no writing, other than the body of the contract, is necessary; and the statute of fraudé has no application. The debt is his if the contract is valid. (Hunt v. Adams, 5 Mass. Rep. 358.)

But in cases where the undertaking of the surety is not for a direct performance by himself, but that his principal shall perform, and that he will be bound in case of non-performance by the .principal, the undertaking is collateral. It is a promise distinct and separate from the original contract, to which it is collateral, and must be in writing and express the consideration.

[Monroe General Term, December 3, 1855.

It is claimed that it does not sufficiently appear for which party the defendant McBlrone undertook, ás surety. But I think this is manifest from the position his. name occupies. The party of the first part signed and sealed first, and this defendant’s signature follows that of the other parties of the second part. This, I think, sufficiently indicates that he intended to be bound with them. (Thomas v. Gumaer, supra.) The judgment must therefore be reversed, and a new trial ordered-, with costs to abide the event.

Selden, Welles and Johnson, Justices.]