Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-20

scuOOlS ana SCHOOL OlstlJCts o1 Iuc Oedee aIe nOI
repealed by chapter "a, of the general laws of
1877.
An act which merely makes an appropria-
revenue. within the meaning of sec. 10, art. 4,
OF the State constitution, though it may lead
to the necessity of taxation.
Order affirmed.
y. L. Sheldon, respondent, vs.. Chauncey But
Ter and William NJ. Campbell, late co-part-
ners as Butler q Comstock, appellants.
SYLLABUS.
written guaranty of the collection of note
made by third party is not void as within the
statute OF frauds because the consideration
thereof is not therein expressed. When such
consideration arises solely out of a valid dis
charge by the guarantee of an obligation in his
favor against the guarantor, wholly distinct
and independent of the note.
OPINION.
1t is objected that under the statute of
frauds (Gen. st. Oh. Al. Title 2, Sec. 6,
Sub. y the contracts Of guarantee sued on are
void because no consideration is therein ex-
pressed. Upon the facts stated in the com.
plant the guaranty of the defendants rs to
eack note-althongh in form and undertaking
to answer for the debt or default of another,
was not such in fact within the meaning Of the
statute. 1t had its root in transaction and
| written agreement between them and the
plaintiff, in which the makers of the notes had
| no interest, but which concerned the plaintiff
and the defendants alone. Uuder said agree
| ment defendants had received from the plain
| tiff certain threshing machines to sell on COM
| mission, and upon certain terms and con-
| ditions by which, among other things they
| were obligated to sell to none but responsible
| parties and 10 endorse and make secure to
plaintiff s satisfaction all notes taken on sales
| made to persons considered irresponsible by
the plaintiff.
The notes in question were received by de-
| PENDANTS in part payment of one of the ma
| chimes sold by them to the makers under this
| agreement. Deeming the makers irresponsible
plaintiff refused to accept the notes, where
| upon, to induce him to take them and credit
! their amount on their Indebtedness TO him IN
der the agreement, the defendants agreed il
writing in consideration thereof to procure the
makers of the notes to give security for theil
payment, or in defanlt thereof to indorse them
personally to the plaintiff. Failing to obtair
such security defendants guaranteed their col
lection, and thereupon plaintiff took them with
such guarantee in satisfaction and discharge OF
the obligations of the defendants under sale
written agreements and their indebtedness t.
him Hereunder, to the amount of the notes
| for threshing machines heretofore delivered
| 1t thus appears that the contract Of
guaranty endorsed upon both note.
was supported by valid consideration benef.
cial to the defendants and proceeding tc then
| directly from the plaintiff. The leading pur
pose of the defendants in making it was to pro
mote their own interest by obtaining dis
charge from other existing liability to tn
plaintiff, and not simply to become suretie
upon the notes for the benefit of the makers, o
at their request. Their promise in each cas-
was an original one, distinguished from
purely collateral undertaking, founded upon
valid consideration, moving solely from tn
plaintiff to them. and wholly distinct and indie
pendent Of the notes to which the guaranty re
lated, and it was therefore not within the stat
ute of frauds. Though it had rested entirel
in ,parol it would not therefore have been in
valid.
Nichols & Co. Va. Allen. % Mimi, $685.
Leonard vs.. Wedenburgh, 8 Johns, 30
Farley vs., Cleveland, Cow, 80 and 8. id
639.
johnson Va. Gilbert, Hill, l7s.
Brown VS.. Curtiss, 2 Const. 225.
Crandal VS.. Mcneil, 81, N. Y. 1856.
Mallory VS.. Gillett q N. Y. Alp.
; Thomas Murrey, 81 N. Y. COS.
, Nelson VS.. Boynton, 3 Nut. 400.
The complaint contains no allegation tha
plaintiff acted in his capacity as agent O
Nichols, Shepard & Co.. in making either of tn
contracts with the defendants. The discou
nected averment in the fore part of the plead
ing that he was the general agent of that firm
: for the sale of their threshing machines,
, therefore an immaterial one and irrelevant t
, any cause of action therein stated.
The facts stated show, that the plaintiff i
, the lawful owner of the notes, and demands i
suit.
Though Nichols, Shepard d Co., are named a
/, payees in the notes, they never accepted ther
but refused to do So. Their Endorsement O
them, without recourse into the circumstance
as stated in the complaint, cannot b
! construed into an admission of ownership. 1t
| mn md of1p inv sv,% ho
owners the apparent we'll as the absolute le
gal title to the notes, SO that they could b
2 used as negotiable paper, aud the indorsemer
was mere formal one to that end. The orde
overruling the demurrer is affirmed.
CORNELL, j.