Citation Numbers: 3 Hill & Den. 584
Judges: Bronson, Nelson
Filed Date: 10/15/1842
Status: Precedential
Modified Date: 1/12/2023
I am of opinion the court below erred. The contract sued upon is, in substance and legal effect, a promissory note. As such it imports a consideration 3 and is not, therefore, within the statute of frauds. All the numerous cases in which it has been held that blank endorsements of promissory notes might be filled up, and the parties thus bound as makers or absolute guarantors, were taken out of the statute upon this principle. The objection is not new, as it will be found to have been taken in nearly all the cases of this class. Most of them are cited in the recent case of Oakley v. Boorman, (21 Wend. 588.) And see Park v. Brinkerhoff and others, (2 Hill, 663.)
The present case is not distinguishable in principle from Hough v. Gray, (19 Wend. 202,) Ketchell v. Burns, (24 id. 456,) or Lequeer v. Prosser, (1 Hill, 256.) The contract is the same in form and substance as in those cases, and in each of them we held it to be an original undertaking, upon which the defendant might be made liable as the maker of a promissory note. (See also McLaren v. Watson’s ex’rs, 26 Wend. 430, per Walworth, Ch.) It is true, in some of the cases cited the question did not arise under the statute, as the consideration was expressed in the guaranty. But whether expressed or not is wholly immaterial 3 for, regarded in the light of a promissory note, the instrument imports a consideration as clearly as if expressed. In Hough v. Gray., however, no consideration was expressed, and the instrument was, in terms, like the one in question. I concede that the latter was a case in which the guaranty was endorsed >at. the time
In the case of Miller v. Gaston, (2 Hill, 188,) we entertained no doubt that Miller might have sustained an action upon the guaranty against Gaston alone, as upon a new note, though the guaranty was made some months after the date of the note ; and so the case was understood by the reporter, according to his marginal note of it.
In the case of Oakley v. Boorman, (21 Wend. 588,) the endorsement was made some two months after the note, and the defendant was held liable as having intended by such endorsement to guaranty the payment of the note in that form. The endorsement was in blank, and if a contract of endorsement had been written over the name of the defendant, it would have been nothing more nor less than an agreement to pay the note, if the makers did not, on demand and notice—a conditional agreement to pay, importing a consideration. Here there is an original, absolute agreement to pay the note, importing the same thing, and therefore equally out of the statute. I admit, the case of Packer v. Willson, (15 Wend. 343,) mili
See Douglass v. Howland,, (24 Wend. 35.)