Eylers v. Coens ( 1891 )

Barnard, P. J.

The defendant’s husband was a contractor to do certain work for the city of Yonkers. The. plaintiffs were his sureties for the performance of the work. The contractor failed to complete the work, or to continue it, and the city notified the sureties that, if the contract was not finished, it would be taken out of Coens’ hands. Coens then assigned his interest in the contract to the plaintiff Eylers, and promised to complete the work. In order to raise money, Mrs. Coens “said she would sign a note, and to make up a note between the three of us, to pay for the labor and materials on her husband’s contract.” This transaction was between the sureties and Mrs. Coens. A note for $500 was given by her to the plaintiffs to pay for labor and materials to finish the work under her husband’s contract. On the 17th of May, 1890, she gave a note for $300 for the same purpose, and on-December 3, 1890, she gave the note in full for $800, to include the two notes of $500 and $300. Hogan, one of the plaintiffs, states the transaction to-have been a little different; that the defendant promised, at her giving of the first note, that, as long as the contract was in her name, the sureties should not lose. The defendant differs irom the plaintiffs, but the judge has found a consideration, and the question must be whether a consideration is established by the plaintiffs’ testimony. It does not appear that the notes ever passed out of the plaintiffs’ hands; that any money was ever borrowed upon them, or either of them. jSTo consideration was made out. As between the parties to this suit, the defendant was a surety to the plaintiffs. She liad no interest in the contract, and only lent her name, so that the sureties could raise money to complete the work. In the hands of bona fide holder for value, the note would have been upheld. As between the parties, it is a mere promise to be security for money to be raised by the surety to enable him to complete the contract of their principal, and is without consideration. The contract is not finished, and the case shows that the $500 note was given upon the expressed condition that it was to pay for labor and materials “to finish Papton street,” under her husband’s contract, where the plaintiffs were “sureties for the same contract.” The subsequent note of $800 was, nodoubt, given under the same condition or understanding. The note was not given for benefit of the separate estate of the wife, and does not charge such estate in the note itself. The judgment should be reversed, and a new trial granted, costs to abide event. All concur.