Wilson Sewing-Machine Co. v. Schnell

• Court: Minnesota Supreme Court
• Writing for the Court: Ripley
• Citation: Wilson Sewing-Machine Co. v. Schnell, 20 Minn. 33 (Minn. 1873)
• Decision Date: 01 January 1873
• Parties: WILSON SEWING-MACHINE CO. v. C. W. AUGUSTUS SCHNELL and others.

Page 33

20 Minn. 33

WILSON SEWING-MACHINE CO.

v. C. W. AUGUSTUS SCHNELL and others.

Supreme Court of Minnesota.

Appeal by plaintiff from an order of the district court, Ramsey county, sustaining a demurrer to the complaint.

The complaint was upon a guaranty in writing of a promissory note, as follows: "Know all men by these presents, that we, C. W. Augustus Schnell, city of Omaha, Nebraska, John J. Gronwold, and J. William Gronwold, of the city of St. Paul, Minnesota, are held and firmly bound to Wilson Sewing-Machine Company, of Cleveland, Ohio, in the penal sum of $500, for the payment of which we hereby bind ourselves and our legal representatives firmly by these presents.

"Now, if C. W. Augustus Schnell redeems note dated April 20th, for $500, which expires August 20th, in favor of Wilson Sewing-Machine Company, then the above is to be void."

                                           [Signed]
                

E. C. Palmer, for appellant.

R. B. Galusha, for respondents.

RIPLEY, C. J.

There is no question, upon the face of the complaint, that the obligation of the Gronwolds is to answer for a debt of Schnell's, for which Schnell continues liable. The complaint states that it was given to induce plaintiff to part to Schnell with the consideration of the note. As he was and is liable thereon, the obligation of the Gronwolds is within the statute of frauds. Bourkmire v. Darnell, 3 Salk. 15; 2 Smith, Lead. Cas. 311; Forth v. Stanton, 1 Saunders, 210.

It was given upon a sufficient consideration, but must not only be in writing, but must express the consideration. Gen. St. p. 334, § 6. It is, briefly, a promise to pay the plaintiff $500, if Schnell does not "redeem" a note for $500 in favor of plaintiff, dated April 20th, and which expires August 20th. It is not necessary that the consideration should appear in express terms. It would undoubtedly be sufficient, in any case, if the memorandum is so framed that any person of ordinary capacity must infer, from the perusal of it, that such, and no other, was the consideration upon which the undertaking was given. Not that a mere conjecture, however plausible, would be sufficient to satisfy the statute, but there must be a well-grounded inference to be necessarily collected from the terms of the memorandum. Hawes v. Armstrong, 1 Bing. N. C. 761. See, also, Caballero v. Slater, 14 C. B. 300.

Perhaps it would not be going too far to say that the obligation refers in terms to a note signed by Schnell. Such seems to be the fair inference from the use of the word "redeem." Assuming this, however, the obligation in itself states no consideration for the Gronwolds' promise. On the contrary, while it is undated, referring, as it does, to an existing note of Schnell's, the just inference is that the note had been already given, and also, of course, that the consideration thereof was past at the time of the making of the promise sued upon, and such a consideration would not support it. Parol evidence, however, is admissible to show the circumstances under which the guaranty was given. Halliley v. Nicholson, 1 Exch. 154.

It may be shown, therefore, by parol, that the obligation was executed and delivered at the same moment of time with the note to which it refers. That being so, we think the weight of authority is in...