#### Erie County Savings Bank, *v.*Caroline E. Coit, as Exr’x, Etc.

*(Court of Appeals,*

*Filed March*1, 1887.)

1. BANKS AND BANKING-CONSIDERATION — SURRENDER OP EXISTING- SECURITY-GOOD CONSIDERATION POR NEW UNDERTAKING.

The surrender of an existing security is a good consideration for a new-undertaking between the parties *to*a surrendered obligation.

2. Same — Consideration op principal contract will support guaranty CONCURRENTLY MADE.

When a contract of guaranty is entered into concurrently with the principal obligation, a consideration which supports the principal contract, supports the subsidiary one also.

3. Same — May be shown by parol.

The consideration need not be expressed in the guaranty, but may be shown by parol.

4. Sayings bank — May deposit in incorporated bank in this State— Laws op 1875, ch. 371, §§ 27, 28 — Agreement to pay interest does-NOT APPECT CHARACTER OP DEPOSIT.

By Laws 1875, ch. 371, §§ 27, 28, savings banks are authorized to keep ten per cent, of their deposits on deposit in any incorporated bank in this-State. The fact that a savings bank making a deposit to the extent allowed by law, secures from the bank with which the deposit is made an agreement to pay interest does not convert the deposit into an unauthorized loan.

*Daniel L.*Lockwood, for appl’t; *E. C.*Sprague, for resp’t.

Andrews, J.

The questions involved, in this case have been carefully considered in the opinion pronounced at the general term, and we shall content ourselves with a brief statement of our conclusions on the main propositions upon which the appellants rely for a reversal of the judgment.

1. It is insisted that there was no consideration to uphold the contract of guaranty. The bond and guaranty were executed concurrently. The principal obligation recites that it was executed by the First National Bank of Buffalo in consideration of deposits made, or which might be made, with said bank by the plaintiff, the Erie County Savings Bank, and the recital is followed by an undertaking on the part of the obligor to repay to the-savings bank, on demand, all deposits which it has made or may make with the First National Bank, on call, as required, with, interest at 4 per cent, per annum. The bond is executed under-the seal of the First National Bank, by its president and cashier.. The undertaking of the. guarantors, which is indorsed on the bond, is as follows: “ In consideration of the making of the deposits mentioned in the foregoing agreement, we each and severally guarantee the performance of the foregoing contract by the First National Bank of Buffalo.” The bond and guaranty were delivered by the First National Bank to the savings bank on the eighth day of March, 1882, in compliance with a request *791theretofore made by the treasurer of the savings bank to the president of the First National Bank, to furnish a new bond, with sureties, to secure deposits of moneys of the sayings bank in the First National Bank. There had been a previous bond and guaranty of similar character executed in 1865 to secure deposits, with interest at the rate of 5 per cent., and from the time of giving that bond to January 17, 1882, the date of the last deposit, deposits were made in each year by the plaintiff with the obligor, payable on call. Prior to January, 1882, three of the four guarantors on the bond of 1865 had died. In consequence of this fact, in January 1882, the finance committee of the plaintiff directed its treasurer to obtain a new bond from the First National Bank as a substitute for the old one, and the request for a new bond was made in consequence of this direction. Within three or four days afterwards, the bond and guaranty now in question was delivered to the plaintiff, and the old bond was surrendered to the First National Bank. The latter bank failed April 14, 1882, owing the plaintiff the sum of $30,000 for deposits on and prior to January 17, 1882. This indebtedness has been paid in part by the receiver of the insolvent corporation, and in part by co-sureties of the defendant’s intestate, but leaving a part of the debt still unpaid.

Upon these facts we are of opinion that the surrender of the bond of 1865 was a good consideration for the guaranty. It is a legitimate inference from the circumstances that the new bond was intended by both banks as a substitute for the original bond, and no other inference is consistent with the acts of the parties and the circumstances. That this was the intention of the plaintiff is plain from the action of its officers. The finance coimnittee directed its treasurer to procure a new bond as a substitute for the former one, and it surrendered the old bond within a few days after receiving the new one. There was no formal action by the First National Bank showing its intention, beyond the giving of the new bond. But the new bond covered past as well as prospective deposits, and fixed a rate of interest more favorable to the First National Bank than the former one. The president of the First National Bank testified that the rate of interest was referred to in the conversation between the treasurer of the plaintiff and himself before the new bond was given, and that the treasurer of the plaintiff, in connection, with this subject, said “ it would be a good thing to have a new contract made.” It was in the interest of the First National Bank that the new bond should be substituted for the old one, and we cannot doubt, upon the evidence, that it was made and accepted as a substitute for the original one, and that the surrender of the old bond was in conformity with the intention of both banks when the new bond was given. It is needless to cite authorities to show that the surrender of an existing security is a good con*792sideration for a new undertaking between the parties to the surrendered obligation. There being a good consideration for the bond between the obligor and obligee, it follows, we think, that the same consideration supports the guaranty, and that it is immaterial whether the guarantors knew or did not know that the surrender of the old bond was in the contemplation of the parties when they became guarantors. Where a contract of guaranty is entered into concurrently with the principal obligation, a consideration which supports the principal contract supports the subsidiary one also. We understand this to be the settled doctrine. *McNaught*v. *Mc*Claughry, 42 N. Y., 22; *Haigh*v. *Brooks,*10 Adol. & El., 309; *Simons*v. *Steele,*36 N. H., 73; Brandt, Sur. §§ 6, 7. And the consideration need not be expressed in the guaranty, but may be shown by parol. *Evansville Bank*v. *Kaufmann,*93 N. Y., 273.

The claim that the question of consideration should haye been submitted to the jury is not well taken. There was no substantial controversy in respect to the facts. The president of the First National Bank does not deny that he knew that the plaintiff held a bond to secure deposits when the new bond was given. His denial only goes to the point that he was ignorant of the precise form of the security.

2. The other principal question relates to the validity of the agreement evidenced by the bond. It is claimed that the arrangement between the savings bank and the First National Bank was, in substance, an agreement by the former to loan money to the latter, contrary to the statute prescribing the securities in which investments by savings banks may be made. We think it is a conclusive answer to this objection that .the general act regulating the dealings and operations of savings banks (Laws 1875, *c.*371, §§ 27, 28) expressly authorizes savings banks to keep 10 per cent, of their deposits on deposit in any incorporated bank in this State, and that it does not appear that the deposits made with the First National Bank of Buffalo were" in excess of this limit. The fact that the savings bank secured from the First National Bank an agreement to pay interest on the deposit does not convert the deposit into an unauthorized loan. It would seem strange to make an act of provident administration a cause of forfeiture upon a strained construction of the transaction. The deposits were at all times subject to call by the plaintiff.

There are some subordinate questions treated in the prevailing opinion below.

We think there is no error disclosed in the record, and the judgment should therefore be affirmed.

All concur.