Packer vs. Willson, 15 Wend. 343

By the Court, Savage, Ch. J. The defendant’s counsel objected to the plaintiff’s right to recover, 1. Because no consideration .was expressed in the written guaranty, and was therefore void by the statute of frauds; 2. That the suit should have been brought by both administrators, the notes belonging to the estate of Perez Parker, deceased.

In relation to the second point, it is no doubt true that in actions brought by administrators, as such, all the administrators ought to join; but if one of several executors or administrators brings the suit alone, the defendant can take advantage of the non-joinder only by pleading it in abatement. 1 Ch. Pl. 13. 1 Saund. 291, g. In this respect, there is a difference between suits brought by persons in their own right, and those brought in a representative capacity.

When brought in their own right, a non-joinder of proper plaintiffs would be cause of nonsuit upon the trial; but where in autre droit, the non-joinder can be taken advantage of only by pleading in abatement. This suit, however, is not brought in a representative capacity ; the plaintiff does not declare as administrix, but as bearer. It is sufficient that the plaintiff shows a lawful title to the note, which she does.

The note in this case is not the gist of the action, it is the guaranty ; and as the cause of action originated since the death of Perez Parker, it would not have been correct for the administrators, as such, to have declared upon it. Such a declaration is necessary in such cases only, where a cause of action existed in favor of the intestate in his life time. The intestate had no cause of action against the defendant in this cause; nor has any person but the plaintiff, upon the guaranty in question.

She was the only acting administratrix ; she had possession of the notes against the Farnhams, and was in fact the bearer of them, and to her the guaranty was made. The notes were indeed assets in her hands, but that is a question between her and the owners of the estate, or the creditors of her deceased husband. It is a question in which the defendant jias n0 concern; he is not deprived, by the form of the action, of any defence which he may have. 9 Wend. 425, 6. 5 id. 307. The main point in the case is, that no consideration appears on the face of the guaranty—none is expressed. The old statute of frauds, 1, R.

L. 78, §11, declared in substance that no defendant should be liable, upon any special promise, to answer for the debt, default or miscarriage of another person, unless the agreement upon which such action should be brought, or some memorandum or note thereof, be in writing, &c. This is like the English statute, 29. Car,. 2, ch. 3, §4, and it has received a construction, both in England and in this state, to which the courts both there and here have adhered thirty years. In Wain v.

Warlters, 5 East, 10, it was held that the word agreement means the consideration for which, as well as the promise by which the party binds himself. In Sears v. Brink, 3 Johns. R. 215, Van Ness, justice, says: “ The word agreement comprehends the consideration as well as the promise.” In these cases, therefore, it-was held that the defendant was not liable, although he had promised in writing, because the consideration for the promise was not in writing. These decisions were not universally approved, either in England or • in this country. See Mr. Day’s note to Wain v. Warlters, 5 East, 20.

In subsequent cases, it has been held sufficient if the court can find out by inference or construction of the. instrument what the consideration was. In the language of Tindall, Ch. Justice, “ There must be a consideration, and if by fair inference we can find that, that is sufficient; if we can as it were, spell it out from the agreement.” And it is argued in this case, that by taking the notes and the guaranty together, the' consideration may be fairly implied.

Thus, when the guaranty was given, September 11, 1833, the notes were due and suable; the defendant meant by his guaranty to say, “ I promise that the makers shall pay the within note, which is now due, in six months from this date, or, I will pay it myself in that time.” Forbearance to call on the makers is, therefore, inferred as the consideration. This is ingenious and plausible, and perhaps is not going farther to spell out the consideration than some of the English cases have gone. Mr. Justice Nelson has reviewed a number of those in Rogers v. Kneeland, 10 Wend. 250, a case arising under the old statute.

But the question , „ . , . .. now before us arises upon the revised statutes ; the

section is as follows : “ In the following cases,"every agreement shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration be in writing, and subscribed by the party to be charged therewithand one of the cases enumerated is the following: “ Every special promise to answer for the debt, default or miscarriage of another person.” 2 R. S. 135, § 2, sub. 2. The revisers, in a note, point out the difference between the old statute and the new statutes,'that the latter require the consideration to be expressed.

It was thought by the revisers and the legislature that the most proper way for courts to find out the consideration of an agreement was, not to infer or imply, or spell out the consideration ; but after the passing the revised statutes, the party should express the consideration. It is argued by the plaintiff’s counsel, that the revised statutes have not altered the rule in this respect; and it may be conceded that the only difference is between the words express and imply, but that is a very material one in the present case.

I consider the statute cannot be misunderstood ; the consideration must be expressly contained in the agreement. The consideration is an important part of every agreement, and necessary to its validity ; and the legislature intended that it should plainly appear upon the face of the instrument. The agreement of the defendant is not such an one, and is therefore not obligatory upon him. The defendant is entitled to judgment.