§ 31 Agreements in Writing, etc. L. 1909, ch. 45 than a year. Cohen v. Levy, (1912) 77 Misc. 98, 136 N. Y. S. 56. See to the same effect Cox v. Albany Brewing Co., (1889) 53 Hun 634 mem., 6 N. Y. S. 841. An oral contract made in February, 1915, whereby an employee is engaged for a period of six months, beginning on the first of the following October, and ending April 1, 1916, cannot be fully performed within one year from the time of its execution, and is therefore within the statute and void. Franco v. Caruso, (1916) 158 N. Y. S. 751. Where an oral employment contract is for a term of one year the agreement is not brought within the statute by the mere fact that the employee does not go to work until the day following the day the agreement is made. Sheingold v. Baer, (1911) 145 App. Div. 493, 129 N. Y. S. 924. An express verbal agreement for service for one year, although made after the time of the actual commencement of the services, is valid. Lajos v. Eden Musee American Co., (1894) 10 Misc. 148, 20 N. Y. S. 916. Recovery for services rendered under ultra-year contract.-Although recovery cannot be had upon a verbal contract not to be performed within a year, recovery may be had for services rendered thereunder on a quantum meruit. Thacher v. New York, etc., R. Co., (1912) 76 Misc. 60, 136 N. Y. S. 342; Booker v. Heffner, (1904) 95 App. Div. 84, 88 N. Y. S. 499; McKinney v. McKinney, (1878) 8 Daly 368, affirmed (1879) 76 N. Y. 594; Shute v. Dorr, (1830) 5 Wend. 204; Hartwell v. Young (1893) 67 Hun 472, 22 N. Y. S. 486; Van Dyke v. Clark, (1892) 64 Hun 636 mem., 19 N. Y. S. 650; Turnow v. Hochstadter, (1876) 7 Hun 80; Jones v. Hay, (1868) 52 Barb. 501; Bartlett v. Wheeler, (1864) 44 Barb. 162; Little v. Wilson, (1855) 4 E. D. Smith 422; Nones v. Homes, (1858) 2 Hilt. 116. See also Schrader v. Fraenckel, (1907) 117 App. Div. 97, 102 N. Y. S. 335, affirmed (1908) 191 N. Y. 545, 85 N. E. 1116; Price v. Press Pub. Co., (1907) 117 App. Div. 854, 103 N. Y. S. 296; Lockwood v. Barnes, (1842) 3 Hill 128, 38 Am. Dec. 620. Where, however, the invalid contract is fully performed by the employee and accepted by the employer, the compensation must be as agreed upon, and not upon a quantum meruit. Van Valkenburg v. Croffert, (1878) 15 Hun 147. III. PROMISE to Answer for Default of ANOTHER 1. In General· Statement of consideration in memorandum of contract to answer for debt of another: see Ann. Cas. 1913B 986 note. Contracts to answer for debts of others: see the following notes: 33 L. R. A. 359; 39 L. R. A. 378; 28 L. R. A. (N. S.) 882; 15 L. R. A. (N. S.) 214, 1087; 9 L. R. A. (N. S.) 54; 13 L. R. A. (N. S.) 212; 32 L. R. A. (N. S.) 598, 1077; 40 L. R. A. (N. S.) 244. Development of doctrine. In the early case of Leonard v. Vredenburgh, (1811) 8 Johns. 29, 5 Am. Dec. 317, Chief Justice Kent divided the cases on the present subject into three classes: 1. Cases in which the guaranty or promise was collateral to the principal contract, but was made at the same time, and became an essential ground of the credit given to the principal or direct debtor. 2. Cases in which the collateral undertaking was subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability was the ground of the promise, without any distinct and unconnected inducement. 3. Where the promise to pay the debt of another arose out of some new and original consideration of benefit or harm moving between the newly contracting parties. The first two classes of cases were held to be within the statute of frauds, but the last was not. In Mallory v. Gillett, (1860) 21 N. Y. 412, affirming 23 Barb. 610, the broad language of Chief Justice Kent's third classification was modified so as to require that the new consideration should move to the promisor and be beneficial to him. L. 1909, ch. 45 Agreements in Writing, etc. § 31 (Note in Barnett v. Wing, (1891) 62 Hun 125, 16 N. Y. S. 567, a strange misconception of the decision in Mallory v. Gillett, supra.) In Brown v. Weber, (1868) 38 N. Y. 187, the rule as stated in Mallory v. Gillett, supra, was again narrowed and restricted, the court holding that the test to be applied in every case was whether the party sought to be charged was the principal debtor, primarily liable, or whether he was liable only in case of the default of a third person; in other words, whether he was the debtor, or whether his relation to the creditor was that of surety to him for the performance by some other person of the obligation of the latter to the creditor. In White v. Rintoul, (1888) 108 N. Y. 222, 15 N. E. 318, the court traces the growth of the doctrine prevailing in New York which serves to distinguish between original and collateral promises in cases arising under the statute of frauds, showing how each stage of the development of the doctrine has been a definite and deliberate advance toward a more faithful observance of the statute, and an abandonment of efforts to narrow the just and natural range of its application. The court, speaking through Finch, J., states the established doctrine as follows: "Where the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the ́ promisor thereby comes under an independent duty of payment irrespective of the liability of the principal debtor." The doctrine thus announced is supported more or less directly by the following cases: Goodman v. Cohen (1892) 132 N. Y. 205, 30 N. E. 399; Dodge v. Zimmer, (1888) 110 N. Y. 43, 17 N. E. 399; Ackley v. Parmenter, (1885) 98 N. Y. 425, 50 Am. Rep. 693; Roe v. Barker, (1880) 82 N. Y. 431; Prime v. Kochler, (1879) 77 N. Y. 91; Booth v. Eighmie, (1875) 60 N. Y. 238, 19 Am. Rep. 171; Sanders v. Gillespie, (1874) 59 N. Y. 250, affirming 64 Barb. 628; Richardson Press v. Vandergift, (1914) 165 App. Div. 180, 150 N. Y. S. 238; R. & L. Co. v. Metz, (1914) 165 App. Div. 533, 150 N. Y. S. 843, affirmed (1915) 215 N. Y. 695, 109 N. E. 1091; Bauer v. Ambs, (1911) 144 App. Div. 274, 128 N. Y. S. 1024; Naylor v. Davis, (1909) 130 App. Div. 311, 114 N. Y. S. 248; Mechanics', etc., Bank v. Stettheimer, (1906) 116 App. Div. 198, 101 N. Y. S. 513; Ruhl v. Heintze, (1904) 97 App. Div. 442, 89 N. Y. S. 1031; Berg v. Spitz, (1903) 87 App. Div. 602, 84 N. Y. S. 532; Cardeza v. Bishop, (1900) 54 App. Div. 116, 66 N. Y. S. 408; Millard v. Steers, (1896) 9 App. Div. 419, 41 N. Y. S. 321, affirmed (1899) 158 N. Y. 741, 53 N. E. 1128; Clausen-Flanagan Brewery v. Luther, (1916) 97 Misc. 650, 162 N. Y. S. 281; Ackley v. Skinner, (1909) 65 Misc. 142, 120 N. Y. S. 1105; Jefferson Bank v. Starr, (1907) 56 Misc. 656, 107 N. Y. S. 582; Stromberg v. Loiacono, (1904) 45 Misc. 651, 91 N. Y. S. 46; American Wire, etc., Bed Co. v. Schultz, (1904) 43 Misc. 637, 88 N. Y. S. 396; Lippmann v. Blumenthal, (1899) 29 Misc. 335, 60 N. Y. S. 510; Mitchell v. Miller, (1898) 25 Misc. 179, 54 N. Y. S. 180; Perry v. Erb, (1898) 23 Misc. 105, 50 N. Y. S. 714; Fitzgerald v. Tiffany, (1894) 9 Misc. 408, 30 N. Y. S. 195; Tuman v. Johnston (1893) 6 Misc. 26, 25 N. Y. S. 1114; Lachman v. Irish, (1893) 72 Hun 491, 25 N. Y. S. 193; Tolhurst v. Powers, (1891) 61 Hun 105, 15 N. Y. S. 420, affirmed (1892) 133 N. Y. 460, 31 N. E. 326; Strough v. Brown, (1885) 38 Hun 307; Myers v. Dorman, (1884) 34 Hun 115; Allen v. Eighmie, (1878) 14 Hun 559, affirmed (1880) 79 N. Y. 632; Cox v. Weller, (1875) 3 Hun 612; Watson v. Parker, (1874) 1 Hun 618; Dux v. Spielberg, (1913) 140 N. Y. S. 410; Yracheta v. Stanford, (1909) 120 N. Y. S. 117; Shay v. Cruxton, (1909) 116 N. Y. S. 1123; Barth v. Sanders, (1908) 113 N. Y. S. 651; Schroeder v. Helms, (1906) 98 N. Y. S. 214; Smith v. Schneider, (1903) 84 N. Y. S. 238; Wright v. Carman, (1892) 19 N. Y. S. 696; Farley v. Cleveland, (1825) 4 Cow. 432, 15 Am. Dec. 387; Kessler v. Sonneborn, (1882) 10 Daly 383; Dunning v. Roberts, (1862) 35 Barb. 463; Carville v. Crane, (1843) 5 Hill 483, 40 Am. Dec. 364; Rawson v. Springsteen, (1873) 2 Thomp. & C. 416. 8 31 Agreements in Writing, etc. L. 1909, ch. 45 Determination of character of agreement. Whether a promise is collateral or an original one is not to be determined solely from the language employed. The question depends upon the intention of the parties, which is to be ascertained not only from the language used but from all the surrounding circumstances existing at the time the promise is made. Clark v. Howard, (1896). 150 N. Y. 232, 44 N. E. 695, reversing judgment 74 Hun 228, 26 N. Y. S. 620; Oppenheim v. Waterbury, (1895) 86 Hun 122, 33 N. Y. S. 183, affirmed (1898) 155 N. Y. 684, 50 N. E. 1120; Maddock v. Root, (1893) 72 Hun 98, 25 N. Y. S. 396, affirmed (1896) 150 N. Y. 561, 44 N. E. 1125. Sufficiency of memorandum.—In Griffen v. Edelman, (1911) 146 App. Div. 744, 131 N. Y. S. 450, the action was brought on the following guaranty: "New York, Dec. 24, 1908. "I hereby guarantee the payment of all bills as they may come due for goods that my brother, Meyer Edelman, may buy of Benjamin Griffen of this city. This guaranty shall not exceed in amount the sum of $500 of unpaid bills which he may buy during one year from date. When Meyer Edelman shall owe Benjamin Griffen the sum of $500, I am to be notified, and I will then notify Benjamin Griffen if I am willing to increase the guaranty. "A. A. Edelman." It was held that the memorandum was sufficient to satisfy the statute of frauds. See also in this connection Helios-Upton Co. v. Thomas, (1904) 96 App. Div. 401, 89 N. Y. S. 222, affirmed (1906) 184 N. Y. 585, 77 N. E. 1188. It is not necessary that anything more should appear, to make a valid guaranty, than the intent of the party as collectible from necessary implication. A signature or indorsement in blank on a note, holding such a relation as to import an intent to be bound, is the expression of an obligation in writing sufficient to satisfy the statute of frauds. Parks v. Brinkerhoff, (1842) 2 Hill 663. To the same effect is Casey v. Brabason, (1860) 10 Abb. Pr. 368. It has been held that the note or memorandum of a collateral agreement to pay the rent of premises leased to another, contained in the correspondence between the agent of the owner and the lessee and guarantor, is insufficient to sustain an action thereon by the owner where, without the aid of parol evidence, he is in no way connected with the agreement, since the note or memorandum must contain in itself all the essential terms of the contract. Ward v. Hasbrouck, (1902) 169 N. Y. 407, 62 N. E. 434, affirming 52 App. Div. 627, 65 N. Y. S. 200. Oral revocation of guaranty.-A written guaranty may be orally revoked. Picker v. Fitzelle, (1901) 60 App. Div. 451, 69 N. Y. S. 902. Extension of written guaranty by parol. The terms of a written guaranty cannot be extended by parol. Friedlander v. New York Plate Glass Ins. Co., (1899) 38 App. Div. 146, 56 N. Y. S. 583. 2. Application of Statute Whether oral promise is original or collateral within statute of frauds as depending on intention of parties: see Ann. Cas. 1914A 490 note. Original or collateral nature of oral promise within statute of frauds as question of law or fact: see 9 Ann. Cas. 895 note; Ann. Cas. 1915B 257 note. Application of statute of frauds to joint promise by two persons for benefit of one of them: see 5 Ann. Cas. 844 note. Agreement between two parties whereby one assumes other's debt as within statute of frauds: see 18 Ann. Cas. 391 note. Statute of frauds as affecting right to assume debts on dissolution of partnership: see 48 L. R. A. (N. S.) 548 note. Oral promise by stockholder to pay debt of corporation as within statute of frauds: see Ann. Cas. 1912B 222 note; Ann. Cas. 1913D 851 note. Validity of oral guaranty by transferor of negotiable instrument: see 2 Ann. Cas. 506 note. Application of statute of frauds to promise to indemnify: see 6 Ann. Cas. 671 note; Ann. Cas. 1912A 884 note; Ann. Cas. 1915A 867 note. Promise made as part of L. 1909, ch. 45 Agreements in Writing, etc. 8 31 purchase price of property as promise to pay debt of another within statute of frauds: see 12 Ann. Cas. 1101 note. Promise to pay debt of another out of debtor's property as within statute of frauds: see Ann. Cas. 1912B 446 note. Promise to pay debt of another in consideration of relinquishment of lien by promisee as within statute of frauds: see Ann. Cas. 1913D 319 note. Statute as applicable to appeal bond. The present provision of the statute of frauds applies only to common-law agreements; it is not applicable to a statutory undertaking on appeal. Doolittle v. Dinning, (1825) 31 N. Y. 350; Thompson v. Blanchard, (1850) 3 N. Y. 335. Factor's agreement. The agreement of a factor to guarantee the sales made by him under a del credere commission is not within the statute of frauds and is valid without being in writing. Sherwood v. Stone, (1856) 14 N. Y. 267; Wolff v. Koppel, (1845) 2 Denio 368, 43 Am. Dec. 751. Promise to indemnify.-A promise by one person to indemnify another for becoming a guarantor for a third is not within the statute, and need not be in writing. Jones v. Bacon, (1895) 145 N. Y. 446, 40 N. E. 216, affirming 72 Hun 506, 25 N. Y. S. 212, which overruled Kingsley v. Balcome, (1848) 4 Barb. 131, and Baker v. Dillman, (1861) 12 Abb. Pr. 313; Tighe v. Morrison, (1889) 116 N. Y. 263, 22 N. E. 164, 5 L. R. A. 617, affirming 41 Hun 1; Chapin v. Merrill, (1830) 4 Wend. 657; O'Brien v. Donnelly, (1915) 169 App. Div. 709, 155 N. Y. S. 790. Guaranty of payment of note.- Where the holder of a note against a third person transfers it for value received from the transferee and at the time of transfer promises orally that the note is good and will be paid at maturity, such promise is not within the statute of frauds, and the promisor is liable thereon in case of nonpayment of the note. Milks v. Rich, (1880) 80 N. Y. 269, 36 Am. Kep. 615. See to the same effect Brown v. Curtiss, (1849) 2 N. Y. 225, affirming 2 Barb. 51; Durham v. Manrow, (1849) 2 N. Y. 533, affirming 3 Hill 584; Brookline Nat. Bank v. Moers, (1897) 19 App. Div. 155, 45 N. Y. S. 997; Mead v. Parker, (1886) 41 Hun 577, affirmed (1888) 111 N. Y. 259, 18 N. E. 727; Johnson v. Gilbert, (1843) 4 Hill 178; Pike State Bank v. Franklinville People's Nat. Bank, (1909) 118 N. Y. S. 641. Letter of credit.-A letter addressed to the owner of a farm stating that if the owner would let the farm to a certain person for a term of five years the writer would see him paid, amounts to a general letter of credit, and when accepted and acted upon by the owner a contract is completed between himself and the letter writer which is not affected by the statute of frauds. Cheever v. Schall, (1895) 87 Hun 32, 33 N. Y. S. 751. Contingent promise of attorney. An agreement by an attorney with his client that if he fails to recover judgment in a pending suit in which the client is plaintiff and to collect the judgment, he will make no charge for his services, is not within the statute as a promise to answer for the debt of another. Fitch v. Gardenier, (1866) 2 Abb. App. Dec. 153. Promise based upon forbearance to sue.-A promise that if the promisee will forbear to sue a debtor the promisor will pay the debt as soon as he sells a piece of land belonging to the debtor, which he is authorized to sell, must be in writing, notwithstanding it is made on a sufficient consideration. Simpson v. Patten, (1809) 4 Johns. 422. See also Berlesen v. Stearns, (1899) 26 Misc. 841, 57 N. Y. S. 1. It has been held that an agreement by a second mortgagee to pay the taxes on the property if the first mortgagee will delay the foreclosure of his mortgage, is not within the statute. Williams v. Bedford Bank, (1901) 63 App. Div. 278, 71 N. Y. S. 239. Tri-party agreement for mutual benefit.-A tri-party agreement by which one of the parties is to do certain work for the second party for which he is to be paid by the third party in goods, and the latter is to be compensated by the second party, is not within the statute as an agreement by the second party to pay the first party's indebtedness for the goods. Mather v. Perry, (1846) 2 Denio 162. It was held in Cox v. Weller, (1875) 6 Thomp. & C. 309, § 31 Agreements in Writing, etc. L. 1909, ch. 45 that an agreement by the defendant to pay the plaintiff a claim he had against a third party for lumber in consideration of the sale of the lumber by said third party to the defendant, was not within the statute. Guaranty of dividends on sale of stock.-An agreement by the directors of a corporation upon a sale of its stock that in the event the corporation fails to declare 8 per cent. dividends in each year on the stock they will pay to the purchaser the amount of money necessary to make up the 8 per cent. dividends thereon, is not an agreement to answer for the debt, default or miscarriage of the corporation, but is an independent agreement by the directors. Crook v. Scott, (1901) 65 App. Div. 139, 72 N. Y. S. 516, affirmed (1903) 174 N. Y. 520, 66 N. E. 1106. Agreement to pay rent by one jointly interested.—A guaranty of and a promise to pay the rent by one jointly interested with another in business on premises rented by the latter for the carrying on of the business, made at the time of and as a part of the general agreement between the parties for the renting of the premises, is an original undertaking and not within the statute of frauds as a promise to answer for the debt, default or miscarriage of another. Ward v. Hasbrouck, (1902) 169 N. Y. 407, 62 N. E. 434, affirming 52 App. Div. 627, 65 N. Y. S. 200. Promise by transferee of property of debtor.- Where a debtor transfers to another money or property in consideration of the latter's agreement to assume and pay the outstanding debt, and the transferee thereupon promises the creditor to pay the debt, such promise is original and not within the statute. Sing Sing First Nat. Bank v. Chalmers, (1895) 144 N. Y. 432, 39 N. E. 331; Ubert v. Schonger, (1911) 144 App. Div. 696, 129 N. Y. S. 545; Lyon v. Clockessy, (1904) 43 Misc. 67, 86 N. Y. S. 245; Metzger v. Edson, (1898) 25 Misc. 236, 55 N. Y. S. 61; New York Small Stock Co. v. Klosset, (1895) 13 Misc. 234, 34 N. Y. S. 60; Sternwald v. Siegel, (1894) 7 Misc. 70, 27 N. Y. S. 375; Phelps v. Rowe, (1894) 75 Hun 414, 27 N. Y. S. 89; Cock v. Moore, (1879) 18 Hun 31; Tisdale v. Morgan, (1876) 7 Hun 583; Westfall v. Parsons, (1853) 16 Barb. 645; Lippincott v. Ashfield, (1851) 4 Sandf. 611. See also Clark v. Howard, (1896) 150 N. Y. 232, 44 N. E. 695, reversing judgment 74 Hun 228, 26 N. Y. S. 620; Becker v. Krank, (1909) 75 App. Div. 191, 77 N. Y. S. 321, affirmed (1903) 176 N. Y. 545, 68 N. E. 1114; Brumme v. Herod, (1899) 38 App. Div. 558, 56 N. Y. S. 670; Meyers v. Stix, (1891) 36 N. Y. St. Rep. 848, 13 N. Y. S. 301; Beach v. Hungerford, (1855) 19 Barb. 258; Blunt v. Boyd, (1848) 3 Barb. 209; Scherzer v. Muirhead, (1903) 84 N. Y. S. 159. In Belknap v. Bender, (1878) 75 N. Y. 446, 31 Am. Rep. 476, it appeared that the defendant, who was a creditor of a firm that was engaged in running a saw-mill, entered into an agreement with the firm to take the mill, saw up the logs, market the lumber, and apply the net proceeds to the payment of his own and other debts, among them a debt of the firm to the plaintiff for work. It appeared from the plaintiff's evidence that the defendant told him to continue working in the mill and he would pay him at the same rate the firm had been paying and would also pay him the amount that the firm owed him; that the plaintiff went on and worked for the defendant, but the latter failed to pay him the indebtedness of the firm. At the time of the commencement of the plaintiff's action to recover the amount of the debt the defendant had disposed of about half of the lumber. It was held that the plaintiff was not entitled to recover; that the promise to work at full compensation furnished no consideration for the promise to pay the debt of the saw-mill firm, and that the promise was void under the statute of frauds. Promise by owner to pay debt of contractor.- Where the owner of a building in process of construction promises to see that a materialman is paid for material to be furnished to the builder under a contract, and which the materialman had refused to deliver on account of the builder's neglect to pay for material previously furnished, and the materialman delivers the |