#### John Wheelwright *versus*John A. Moore.

Oct. Term, 1828.

In every action upon a special agreement, the declaration must set forth a sufficient consideration; and any material variance in the proof of the consideration will be fatal to the plaintiff’s recovery.

The plaintiff declared, upon a special agreement of the defendant, to guaranty the payment of certain promissory notes made by one Scovell in favor of the plaintiff, in consideration of a sale and delivery of goods by him to Scovell.

At the trial, the plaintiff introduced the special agreement in evidence. This agreement recited the notes of Scovell, which purported to be *for value*received, but contained no consideration for the *defendant's*promise, except such as might he *inferred*from the words “ *value received”*used in the notes, and no other evidence of a consideration was offered. Upon demurrer to this evidence, it was *HELD*that the proof did not meet the declaration : but as it was competent for the plaintiff to support the action by parol proof, that the sale of the goods and delivery of the agreement were concurrent acts, the court awarded a *venire de novo,*to give the plaintiff an opportunity of proving all the facts of his case.

This cause came before the court on a demurrer to the plaintiff’s evidence.

The declaration contained two counts. The first set forth that the defendant, on the 5th day of December, 1827, in consideration that the plaintiff would sell and deliver to one Noah Scovell a quantity of merchandise, promised to guaranty to the plaintiff, or his order, the payment of three promissory notes, made by Scovell, in favour of the plaintiff, bearing date on the day and year aforesaid, and payable, the first in seven, the second in nine, and the third in twelve months after date.

This count then alleged a sale and delivery of the goods to Scovell, the taking of the notes in payment, and concluded by an averment, that the first note havingbeco me due, had not been paid *by Scovell,*nor the payment thereof guarantied to the plaintiff by the defendant.

The second count set forth the guaranty of the *first*note as in the preceding count, and averred that the note having become due, had not been paid *by the defendant,*nor the payment thereof guarantied to the plaintiff by him, although requested, &c.

The defendant pleaded the general issue.

*202At the trial, the plaintiff produced in evidence the Iast-mentioned note, unpaid, and an agreement in writing, executed by y^ defendant, in the following words:

*“*New-York, Dec. 5th, 1827.

*a*Whereas Noah Scovell, of the city of New-York, *has this day passed*to John Wheelwright, of the said city, his three promis- “ sory notes, of which the following are correct copies, viz:

*“*New-York, Dec. 5th, 1827.

“ Dolls. 3,530 27-100

“ Seven months after date I promise to pay to the order of “ Mr. John Wheelwright three thousand five hundred and thirty *“*27-100 dollars *for value received.*N. Scovell.”

*“*New-York, Dec. 5th, 1827.

“ Dolls. 3530 26-100

“ Nine months after date I promise to pay to the order of Mr. John Wheelwright, three thousand five hundred and thirty “ 26-100 dollars for value received. N, Scovell.”

New-York, Dee. 5th, 1827.

“ Dolls. 3,530 27-100

“ Twelve months after date I promise to pay to the order of “ Mr. John Wheelwright, three thousand five hundred and thirty *<(*27-100 dollars, for value received. N. Scovell.”

“ Amounting together to ten thousand five hundred and ninety “ 80-100 dollars : now, in pursuance of the understanding and agreement between the said John Wheelwright and the said *“*Noah Scovell, I do hereby guaranty the just and full payment “ of the said notes to the said John Wheelwright, or his order; “ and should any default of payment thereof be made by the said *“*Scovell, I bind myself for the full amount of such default,”

Jno. A. Moore.”

*203After the introduction of this proof, the plaintiff rested his cause, and the defendant thereupon demurred to the evidence.

And now, *Mr. J. Anthon*for the defendant,

contended, that the proof offered at the trial was not sufficient to support the action. It appeared, (he said) from the evidence, that the notes of Scovell were delivered to Wheelwright before the guaranty was signed by the defendant. This constituted a separate and complete contract' between the plaintiff and Scovell, before the defendant had any connexion with it; thereby making the defendant’s undertaking decidedly *collateral.*It was a guaranty of a previously subsisting debt: the promise, therefore, required a distinct consideration to support it, and *that,*also, should have been expressed in'the memorandum. *[Fell on Mer. Guar. p.*1—15, *p. 20—25, p.*37. 2 *Term R.*80.]

The declaration sets forth a collateral undertaking on the part of the defendant, and the evidence must support the promise stated. The agreement, therefore, must be considered as collateral, or it will not support the declaration; and if collateral, it is void, no consideration being expressed in the writing. [5 *East,*10. 4 *Barn. & Ald.*595. 3 *Bing.*107. 6 Moore, 86.]

II. A guaranty, without a consideration expressed upon the face of it, is considered good in those cases only, where the original and collateral engagements are simultaneous, and are *both original*undertakings. [8 *John. R.*29. 11 *John. R.*221. 13 *John. R.*175. 3 *John. R.*210. 4 *Ib.*281. 5 *Mass. R.*362.] In all these cases, the declarations counted upon an original undertaking on the part of the guarantor, and proof that the collateral engagement was simultaneous with the original undertaking, was considered as disclosing a sufficient consideration to sup^ port the promise. In the present case, if this be considered as an *original*undertaking, then it ought to have been *declared*on as *such ;*but now, the *allegata and probata*do not comport with each other, and the demurrer is well taken.

III. The extent of the interval of time between the making of the original contract and the contract of guaranty, is of no con*204sequence, whether one day or one.year, the sole question being, whether the original contract was perfected between the original parties, by the delivery of the notes, before the contract of guaranty was signed." The consummation of the first contract before the making of the second, constitutes the latter *ipso facto*a collateral engagement, which is void, unless conformed to the statute. In this case, the written document, which forms the whole of the evidence,-speaks of the notes as *having been passed*to the plaintiff by Scovell, showing thereby that the original transaction was at an end. It then sets forth as a consideration for the contract of guaranty, (which is written at the foot, not of the *original*notes, but of *copies,)*that it was pursuant to the understanding and agreement between Wheelwright and Scovell, which is no legal consideration whatever.

The contract of guaranty is therefore within the statute of frauds, and void.

IV. If the Court should be of opinion, that the demurrer is well taken, then the question arises, as to what judgment shah be entered thereon.

A demurrer to evidence admits the competency of the evidence, as well as the verity of it, but objects that it is insufficient to maintain the issue. The judgment is final, either for the plaintiff or the defendant; and the verdict, Avhich is a conditional one, stands or falls with the judgment. [1 *Wash. Rep.*360.]

A venire *de novo*is only awarded where the demurrer is so negligently framed that no judgment can be given upon it. [1 *Arch. Prac. 186. 2 Trials per Pais, 577. 2 H. Black.*187. *Anthon’s Ni. Pri. p. 79. note.]*

*Mr. Wilkes, contra, for the*plaintiff.

The plaintiff rests his case upon the principles established by the Supreme Court in the case of *Leonard v. Vredenburgh, [8 John. R.*29.] The only objection made to the plaintiff’s right of recovery, is founded upon the supposition that the defendant’s contract is a collateral one, and Aoid by the statute of frauds, for not disclosing a sufficient consideration upon the face of the guaranty. But the inference to be drawn from the evidence, is *205not, that the original transaction was perfectly passed, when the guaranty was executed. On the contrary, the fair import of the expressions used is, that the guaranty was given in pursuance of a previous understanding of the parties, that it should make part of the transaction which led to the giving of the notes. The giving of the notes, and the execution of the guaranty, are to be considered as concurrent acts, and all part of one transaction. Upon a demurrer to evidence, any fact which the jury could infer from it, is admitted by the party demurring, and we think that a jury would say, from this evidence, that the guaranty was connected with the original transaction.

II. The guaranty, then, being an essential branch of the same transaction, which caused the notes to be given, it needed no new or distinct consideration to pass between the plaintiff and defendant, but was supported by the same consideration which upheld the notes. The consideration of the notes was the consideration for the guaranty, and being one and the same transaction, the same consideration was sufficient to support both contracts. This is the very principle of *Leonard and*Vredenburgh, and it entirely covers this case.

III. But even if this were not so, still the plaintiff has shown a sufficient consideration upon the very face of his evidence. The notes purport to be given for “ value receivedthe contract re-" cites the notes, and therefore admits “ value received,” as a consideration for the guaranty. The case from the *8th of*Johnson, (29) supports this principle entirely, and embraces the present contract. The pleadings in this case are not drawn in controversy ; for the plaintiff has declared according to the facts of his case. If the *principles*upon which he relies are correct, his .pleadings must be correct also.

IV. But if the plaintiff be mistaken in this view of the evidence, the Court will not conclude his rights by pronouncing a definitive judgment upon the verdict. If he has failed to sustain his action, it is because the whole merits of the transaction are not *206disclosed by the proof: for it is evident, that the whole case must turn upon the fact, whether the giving of the notes and executing the guaranty were concurrent acts. If the plaintiff’s evidence be defective in this particular, he can explain it by parol proof upon another trial.

In cases where *all*the proof is before the Court, and it is sufficient to sustain a judgment, in such cases, upon a demurrer to evidence, the judgment is conclusive, either for the plaintiff or the defendant. But where material facts are omitted, which can be supplied upon a further investigation, there the Court, for the purposes of justice, will award *a venire de novo. [Doug.*119. 2 *Hen. Bla.*187.]

Oakley, J.

This case comes before the Court on a demurrer by the defendant to the plaintiff’s evidence. The declaration sets forth, that the defendant, in consideration that the plaintiff, at his request, would sell to one *Scovell*a quantity of goods, promised the plaintiff to guaranty the payment of certain notes, made by the said *Scovell*to him. The notes are particularly set forth, and the plaintiff then avers, that he sold and delivered the goods to Scovell; that one of the notes had become due, and had not been paid : and that the defendant has refused to pay the same, or to guaranty the payment of it. The plea was non-assumpsit.

On the trial, the plaintiff offered in evidence, an instrument in writing, signed by the defendant, dated Dec. 5th, 1827.

This paper, after reciting that Scovell *had that day*passed to the plaintiff his three promissory notes, sets forth copies of the same, by which it appears that they severally bore date on the said 5th of December, and were expressed to be given for value received. The instrument then contains the following stipulation: “ Now, “ *in pursuance of the understanding and agreement between the said “ John Wheelwright and the said Noah Scovell,*I do hereby gua- “ ranty the just and full payment of the said notes, to the said “ John Wheelwright, or his order, and should any default of “ payment thereof be made by the said Scovell, I bind myself “ for the full amount of such default.”

*207The plaintiff also produced the first of the said notes, showing the same to be due and unpaid. To this evidence, the defendant demurred, and the question is, whether the evidence supports the cause of action as set forth in the declaration.

The rale appears to be, that upon a demurrer to evidence, any fact which a jury could infer from it, is admitted. [Corksedge *v. Fanshaw, Doug.*119.] Applying this rule to the present case, I think it might fairly be inferred, from the written instrument given in evidence by the plaintiff, that the guaranty of the defendant was a part of the original contract, on which the notes of Scovell were made. The guaranty is stated to be given *in pursuance of the agreement*between the plaintiff and Scovell, and although the recital in the instrument speaks of the notes of Scovell as having been already passed to the plaintiff, this language is not inconsistent with the idea that the making of the notes, and the giving of the guaranty, were, in substance, a simultaneous act, and both done in pursuance of the same understanding or agreement.

If this be the correct view of the transaction, it seems to follow, that the promise of the defendant, in the present case, was a part of the original contract between the plaintiff and Scovell, and may be supported by the same consideration. The law upon this subject was particularly considered by the S. C. in *Leonard v. Vredenburgh,*(8 *John.*29.) The guarantee of the defendant in that case was very similar to the present. It was there written on the original note. That circumstance seems to me to be of no importance, any further than it may be evidence of the fact, that it was a simultaneous act with the making of the note. It contained no other consideration than that expressed in the note, which was for value received. The plaintiff, on the trial, offered to show, by parol proof, what was the origin of the contract, and that the making of the note, and the giving of the guaranty, constituted one entire transaction.

The Comí, in considering the case, say, that there are three classes of cases on this subject: one of which is, where “ the “ guaranty is collateral, but is made at the same time with the *208“ principal contract, and is an essential ground of the credit given to the principal debtor.” In such a case, there need not be any ot^er c0nsj¿eratjOn, than that moving between the creditor and .the original debtor; and it was expressly held, that the consideration imputed by the words “ value received,” contained in the note, applied to the guaranty, the whole being one entire contract. *It*was also expressly held, that “ if there was no consi- “ deration, other than the original transaction, the plaintiff ought “ to have been permitted to show that fact by parol proof.” And it was likewise held, that “if there was any doubt upon the face “ of the paper, whether the note and the guaranty were concur- “ rent acts, and one and the same transaction, parol proof was ad- “ missible to show that fact.”

The case of *Leonard v. Vredenburgh*is a leading one on the subject, and has always given the rule, in this state, for the decision of like cases; *[Bailey v. Freeman,*11 J. 221.] and the doctrine of it has been considered, by the Supreme Court of the United States *[D‘Wolf v. Raubaud,*1 *Peters,*501.] as reasonable, and founded in good sense.

The present case, as far as it regards the sufficiency of the written memorandum of the agreement, to charge the defendant, falls, ofmy judgment, clearly within the principle laid down by the Supreme Court in *Leonard v. Vredenburg*; and if the transaction should appear, in evidence, to be as set forth in the declaration, I should think that the defendant would be bound by his contract of guaranty, though it might be considered, that no sufficient consideration was expressed in it; and that parol proof might be given, to show the original contract between the plaintiff and Scovell, and to connect the contract of guaranty with it, as constituting an entire agreement.

It is contended, however, by the defendant, that if the written memorandum, in this case, is sufficient to charge the defendant, it does not prove the particular contract set forth in the declaration ; and that the plaintiff must fail in this action on the ground of the variance.

The rule on this subject is, that in every action on a special agreement, the declaration must set forth a sufficient considera*209íion; [4 *John. Rep.*283.] and it is well settled, that any material • variance m the proof of the consideration, is fatal to the plain- . tiff’s recovery. Every contract must be proved as laid,

In the present case, the consideration alleged, is the sale and delivery of goods by the plaintiff to Scovell. There is no proof of any such consideration, unless it is to be inferred from the words “ value received,” contained in the copies of the notes set forth, in the defendant’s agreement. I think such an inference would he altogether too loose and uncertain. It was competent for the plaintiff to have sustained the declaration set up by him, by parol evidence; and not having done so, he has failed to support his action as laid in his declaration, and cannot recover on the evidence as it now stands. When there is a demurrer to evidence, which is certain, as in the case of documentary proof, the practice is for the court to give final judgment, as on a special verdict; but where there is no certainty in the statement of facts proved, the court may award a *venire de*novo. [1 *Arch.*Prac. 185, 6. 2 *H. B.*209.] In the present instance it is evident, that the whole merits of the plaintiff’s case have not been disclosed ; and I think, that it is competent for us, in the exercise of our discretion, to send the cause to another trial. The purposes of justice would not be subserved by giving a peremptory judgment on this record.

*Venire de novo*awarded.

[H. & E Wilkes, *Att'ys for the plff.*Edward Anthon, *Att'y for the def't.*