Jones v. Bacon

• Decision Date: 09 April 1895
• Citation: 145 N.Y. 446,40 N.E. 216
• Parties: JONES v. BACON.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 446

40 N.E. 216

JONES

v.BACON.

Court of Appeals of New York.

April 9, 1895.

Appeal from supreme court, general term, Fifth department.

Action by Charles Jones against Orin S. Bacon, as surviving executor of James McKechnie, deceased. From a judgment of the general term (25 N. Y. Supp. 212) denying a new trial, and affirming the judgment of the circuit for defendant, plaintiff appeals. Affirmed.

William H. Smith, for appellant.

Henry M. Field and Frank Rice, for respondent.

ANDREWS, C. J.

The oral promise of the defendant's testator to the plaintiff was, in substance, a promise of indemnity in case the plaintiff would become indorser on the note of Kingsbury to the banking firm of McKechnie & Co. for a debt of Kingsbury to the bank. The plaintiff thereupon indorsed the note of Kingsbury to the bank, and has been compelled to pay thereon the sum of about $16,000; Kingsbury having made default, and being insolvent. This is a statement of the facts in the simplest form, and the question arises whether the oral promise by the defendant's testator to indemnify the plaintiff was void, under the statute of frauds, as being a promise to ‘answer for the debt, default or miscarriage of another person.’ 2 Rev. St. 135, § 2, subsec. 2. This is no longer an open question in this state. It was decided in Chapin v. Merrill, 4 Wend. 657, that a promise by one person to indemnify another for becoming a guaranty for a third is not within the statute, and need not be in writing, and that the assumption of the responsibility was a sufficient consideration for the promise. The doctrine of Chapin v. Merrill was approved in Mallory v. Gillett, 21 N. Y. 412, in Sanders v. Gillespie, 59 N. Y. 250, and Tighe v. Morrison, 116 N. Y. 263, 22 N. E. 164, and in other cases in this court. The same doctrine now prevails in the English courts. Thomas v. Cook, 8 Barn. & C. 728; Reader v. Kingham, 13 C. B. (N. S.) 344; Wildes v. Dudlow, L. R. 19 Eq. 198. We do not deem it proper to reopen the discussion, or to refer to cases where a different view has prevailed. The court below considered the subject at large, and the able opinion of Bradley, J., refers to many of the cases on the subject.

The plaintiff was therefore entitled to maintain an action, except for his act in releasing Kingsbury from his liability for the money he was compelled to pay on account of the indorsement. The release was probably essential in order to enable the plaintiff to make any proof of the agreement for indemnity, since he could establish the promise only by Kingsbury; the plaintiff himself not being a competent witness, by reason of the death of the promisor, McKechnie, and there being no other person cognizant of the transaction. By the release, Kingsbury was discharged from all responsibility to the plaintiff. The plaintiff, having paid the debt, in part, out of his property, could, prior to the release, have maintained an action against Kingsbury to recover the sum so paid. Butler v. Wright, 20 Johns. 367;Hunt v. Amidon, 4 Hill, 345. The indemnitor of the plaintiff, on restoring to him this sum, in performance of the contract of indemnity, would be entitled to be substituted to the...