Barney v. Forbes

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: FOLLETT
• Citation: Barney v. Forbes., 118 N.Y. 580, 23 N.E. 890 (N.Y. 1890)
• Decision Date: 25 February 1890
• Parties: NEWCOMB C. BARNEY et al., Respondents, v. JOHN M. FORBES, JR., Appellant.

118 N.Y. 580

23 N.E. 890

BARNEY et al.

v.FORBES.¹

Court of Appeals of New York, Second Division.

Feb. 25, 1890.

Appeal from supreme court, general term, first department.

Action by Newcomb C. Barner and Carrington H. Raymond against John M. Forbes, Jr. A verdict was directed for plaintiffs. The judgment entered thereon in their favor was affirmed by the general term. Defendant again appeals.

F. R. Coudert, for appellant.

Henry F. Bennett, for respondents.

FOLLETT, C. J.

August 31, 1882, J. M. Mur was indebted in the sum of $9,941.88 to the plaintiffs, who held, as collateral, eight first mortgage bonds, for $1,000 each, with several coupons attached, issued by the Boston, Hartford & Erie Railroad Company, and 400 of the shares of the stock of that corporation. The shares were of little or no value, but the value of the bonds and coupons was about equal to the debt. At this time the defendant was one of the partners of Russell & Co., and on the date mentioned he inclosed the following letters in an envelope, and delivered them to the plaintiffs: ‘New York, Aug. 31, 1882. Mess. Barney, Raymond & Co., 84 Broadway-Dear Sirs: Mr. J. M. Mur, being under engagement to Mess. Russell & Co., as their book-keeper, will have $4,000 (Mexican) per annum as salary, and I will undertake that the agreement made by him to pay a certain amount to you each year shall be carried out until the indebtedness to your firm is liquidated. Yours, truly, JOHN M. FORBES, Jr.’ ‘New York, August 31, 1882. Messrs. Barney, Raymond & Co., New York-Dear Sirs: As you are aware, I have accepted a position in China in the house of Messrs. Russell & Co., at a salary of $4,000 per annum, and, in order to liquidate may indebtedness to you of $9,941.88 as per account rendered yesterday, I now pledge to you to remit you from China the sum of $3,000, (three thousand dollars per annum,) in quarterly payments, until the said account is closed. There shall be no failure on my part, and I trust with this assurance and the letter inclosed that this arrangement will be satisfactory, and that you will release the bonds in question. I am, dear sirs, very respectfully, yours, J. M. MUR.’ After receiving these letters, the plaintiffs surrendered the bonds, but when or to whom does not appear. On different dates, between August 31, 1882, and October 20, 1884, Mur paid on his debt $3,429.25; and afterwards this action was brought to recover the remainder from the defendant, on the ground that he bound himself, by the letters, to pay Mur's debt.

The defense interposed is that defendant's promise contained in his letter of August 31, 1882, is void by the second section of the second title of the statute of frauds, because the consideration which moved him to undertake that Mur should perform the promise which he made in his letter of the same date does not appear upon the face of the letter signed by the defendant, or upon the face of both of the letters, read together. The defendant insists that his letter does not refer to Mur's, and that the two are not, by their language, so obviously connected that they may be read together for the purpose of ascertaining the terms and consideration of the defendant's promise. His letter states that Mur had been employed by Russell & Co. on a salary of $4,000 per annum. Mur's letter states the same fact. The defendant states in his letter: ‘I will undertake that the agreement made by him [Mur] to pay a certain amount to you [plaintiff] each year shall be carried out, until the indebtedness to your firm is liquidated.’ Mur's letter agrees to pay plaintiffs a certain amount ($3,000) each year, to liquidate his indebtedness, and refers to ‘the letter inclosed.’ It was undisputed that both letters were inclosed in an envelope, and sent by the defendant to the plaintiffs. It was competent to show this fact by oral evidence, for the same reason that it is competent to show, by like evidence, how and when letters forming a part of an entire correspondence were received. The delivery, and circumstances attending the delivery, of writings may be shown by oral evidence. Both letters must be read together, (Coe v. Tough, 116 N. Y. 273, 22 N. E. Rep. 550,) and, if both satisfy the requirements of the statute of frauds, the defendant must be held liable. A written guaranty given by a third person to a creditor, that his debtor will thereafter pay to him a pre-existing debt, must, notwithstanding...