Wilson v. Roberts.

He charged that the contract was not within the statute of frauds. To this the defendant excepted.

He also charged that, whatever Cronk's rights might be, if Beattie failed to deliver the stone by the 20th of November, and Beattie had not waived such default, it is not a default which affects Roberts. To this the defendant excepted.

That "the failure to furnish the stone by the 20th was a default which, in the terms of the contract, does not go to the exoneration of Roberts." To this the defendant excepted.

That "Cronk and Beattie could extend the time of performance, but that would be no defense to Roberts. Roberts was not a surety, but an original undertaker for the delivery of his own notes; and this formed the consideration of the entire agreement of the plaintiff to furnish the stone."

"The plaintiff, when he has established the delivery of the stone and their setting, establishes a right to recover." The defendant excepted to the charge generally.

The Jury found a verdict for the plaintiff for $542.08. Judgment having been entered on it, the defendant appealed to the General Term.

James S. L. Cummins, for appellant.

I. The order on Roberts by Cronk, and its acceptance by Roberts, is a guaranty. "A guaranty is an agreement not under seal, whereby one person engages to be answerable for the debt, default or miscarriage of another person." (Farmer v. Hall, 5 Denio, 487; Rogers v. Kneeland, 10 Wend., 220.)

1st. The agreement is within the statute of frauds. There was a valid agreement on the part of Cronk to pay these notes to Beattie, and the obligation which this agreement imposed upon Cronk was not released by Beattie when Roberts accepted the order of Cronk in favor of Beattie, but remained in full force and virtue. Therefore, if Roberts should fail to deliver the notes to Beattie according to the terms of Cronk's order, Beattie could hold Cronk under his agreement.

2d. Where the whole credit is not given to the person who is to answer for another, and when any portion of it is given to the person for whom he is to answer, the case is within the statute, and some notes, &c., must be in writing. (Brady v. Sackrider, 1

Wilson v. Roberts.

Sand., 514; Matson v. Wharam, 2 Term, 80; Rogers v. Kneeland, 10 Wend., 248; 13 id., 121.)

3d. There must be a written memorandum expressing the consideration, subscribed by the party to be charged. (Parker v. Willson, 15 Wend., 347; Brewster v. Silence, 4 Seld., 214, 215; Bennett v. Pratt, 4 Denio, 286; Staats v. Howlett, id., 559.)

II. The guaranty of Roberts was without consideration, and therefore void.

1st. It nowhere appears that Roberts was indebted to Cronk, or was bound to advance his notes to Cronk.

2d. It nowhere appears that Roberts had any interest in the contract to furnish stone to the houses.

3d. The contract with Cronk was not executed in consideration that Roberts would give this acceptance; the contract itself shows the consideration on which the stone was delivered, which was the promise of Cronk to procure these notes, and not of Roberts to give them; and no matter what parol understanding may have existed, it was merged in the specialty. (Schermerhorn v. Vanderheyden, 1 John. R., 140; Allen v. Segrist, 21 Wend., 628.)

4th. The acceptance was not given until Beattie had absolutely bound himself to deliver the stone by signing, sealing and delivering to Cronk his part of the agreement.

5th. Even if Beattie had executed the agreement to furnish the stone on his knowledge that Roberts had accepted this order, yet that would not have been a consideration which would have supported this action against Roberts; for, to be a valid consideration, it must be "one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made." (2 Kent, 465, marg.; Jones v. Ashburnham, 4 East., 455; Lent v. Padelford, 10 Mass., 236.)

Beattie is not a party to this acceptance, nor is there any pretense that Roberts was benefited or Cronk prejudiced by Roberts' acceptance.

III. If the acceptance is not void under the statute of frauds, and if there was a valid consideration, yet the last note was never due on the acceptance.

1st. It is a special acceptance to give the notes if the stone is delivered "according to the contract." It nowhere appears that

Wilson v. Roberts.

the contract was fully executed on 1st November. It was not executed until after 20th of November or 1st of December.

2d. The contract was never extended beyond 1st November. The contract is under seal, and could not be extended except by a sealed instrument. The extension is not under seal-never executed by Beattie-never went into effect. (Delacroix v. Bulk ley, 13 Wend., 71; Eddy v. Graves, 23 id., 82; Allen v. Jaquish, 21 id., 628.)

3d. The so-called extension, (and acceptance of the work under it,) if properly executed by Cronk, being after a breach, may waive the liability of Beattie for damages; but it is a new agreement, not contemplated by the acceptance. (Delacroix v. Bulkley, 13 Wend., 71; Eddy v. Graves, 23 id., 82; Allen v. Jaquish, 21 id., 628.)

And in order to hold Roberts, a new promise to deliver notes under the new agreement must be shown, but it was not even done with his consent.

IV. The claim of Beattie against Roberts, even admitting a valid one existed, is no ground for a recovery by the plaintiff in this cause, for it has never been assigned; it is but a collateral to the principal contract and principal debt, which is the contract of Beattie with Cronk, and that contract is owned by Beattie, and not by the plaintiff in this cause. (Jackson, ex dem. Barclay and Bayard v. Blodget,, 5 Cow., 202; Pattison v. Hull, 9 id., 747; Langden v. Buell, 9 Wend., 80.)

V. The Judge erred in refusing to dismiss the complaint.

VI. The Judge erred in refusing to charge, as requested, "that there being no consideration mentioned in the memorandum, it is void."

VII. The Judge erred in refusing to charge "that an extension of the time by Cronk in which the stone was to have been delivered makes a new contract and discharges Roberts, unless he made a new agreement to give the notes under this extended contract."

VIII. The Judge erred in charging that "this contract is not within the statute of frauds."

IX. The Judge also erred in charging thus: "If the stone was not all delivered by the 20th, is the defendant discharged from liability? This is a question to be determined by the contract Bosw.-VOL. V.

14

Wilson v. Roberts.

itself. The defendant's undertaking is to deliver to Beattie a note for $500 when the stone is all delivered and set to complete the eight houses. The failure to furnish the stone by the plaintiff was a default which, in the terms of the contract, does not go to the exoneration of Roberts."

X. The Judge erred in charging that, "whatever rights it might have given Cronk against Beattie, if he had not waived it, it is not a default that affects Roberts. He could not be called on to give his note till the stone was all delivered and set; and when that event did take place, he was bound by the terms of his agreement to give his note whether the stone was delivered by the 20th November or not."

B. W. Bonney, for respondent.

I. The rulings of the Judge at the trial, upon questions of evidence raised by defendant's counsel, were correct, and the exceptions to such rulings are not tenable.

II. The motion by defendant's counsel to dismiss the complaint was properly denied.

III. There was no error in the refusal of the Judge to charge as requested by defendant's counsel.

1. The agreement between Cronk and Beattie and the order on Roberts for the notes in the agreement specified and Roberts' acceptance thereof, were all parts of and constituted one contract, and show a sufficient original agreement for good consideration to deliver the notes.

Roberts was an original contractor, and not surety for Cronk. (O'Donnell v. Smith, 2 E. D. Smith, 124; Leonard v. Mason, 1 Wend., 522.)

It

2. An extension by Cronk of the time for delivering the stone could not affect the undertaking of Roberts to give the notes. in no wise concerned or affected him. (4 Barb., 614, 616.)

IV. There was no error in the charge of the Judge at the trial, and none of the exceptions thereto are well taken.

1. The contract of Roberts is not within the statute of frauds. Roberts was an original contractor, and not a surety or guarantor for Cronk.

2. If the stone was not all delivered by 20th November, 1856, but was afterwards delivered and accepted and used by Cronk,

Wilson v. Roberts.

the default in time would not, under the circumstances, exonerate Roberts from his obligation to give the notes.

V. The exception to the charge generally is not well taken; it is not sufficiently definite to be of any avail.

VI. The judgment entered on the verdict of the jury should be affirmed, with costs.

BY THE COURT-BOSWORTH, Ch. J. By the contract of the 15th of October, 1856, between Beattie and W. H. Cronk, the former covenanted, unconditionally, to furnish and deliver certain kinds of stone for eight houses, and Cronk covenanted as unconditionally to pay therefor $2,000, in notes made by the defendant at three months from their date; the notes to be delivered separately as specified in the contract. By the obvious meaning and clear import of this contract, the stone was to be furnished to Cronk; and by the terms of the contract it is equally clear that Cronk covenants to pay the contract price.

The complaint alleges that the order drawn by Cronk on the defendant " was made and delivered to Beattie" "on or about said 15th day of October, 1856," "which order the said defendant afterwards, and on or about the 17th day of October, 1856, duly accepted in writing."

By that order and the defendant's acceptance of it. the defendant agreed to deliver to Beattie such notes as Cronk had covenanted should be delivered to him, when by the terms of such covenant Beattie should be entitled to demand them.

The liability of Cronk upon his covenant continued unaffected by the defendant's acceptance of this order. He remained liable absolutely and as principal.

In Brewster v. Silence, (4 Seld., 207,) the defendant, F. Silence, was sued as guarantor of "the payment of a note made by George Silence." The jury found (3d.) "That the consideration of the note was a pair of horses sold to George Silence by the payee of the note, and that a condition of the sale was that the note should be guaranteed by the defendant, and that the sale was not consummated until after the execution of the guaranty."