Irrespective of the decision of this court in the case ofBrewster v. Silence (4 Seld., 207), I should have no hesitation in adopting the conclusion that the defendant in this action was held by his guaranty. How far the opinion expressed in that case will have a tendency to relieve him from the performance of his engagement, or his liability under it, will be hereafter considered. There can be no doubt but that the promise of the guarantor was as a surety, and it has been well and properly settled that the obligations of one assumed for another, are strictissimi juris. The surety is held to perform what he has actually and not presumptively promised to do, and upon the conditions (if any) expressed in his undertaking. But in proving and ascertaining what his actual engagement is, the rules of law generally applicable must prevail. It was well remarked by Judge PRATT, in the case of *Page 339 the Union Bank v. Coster's Executors (3 Comst., 203-209), that "in other respects" (than the statutory requisitions that the promise and condition should be expressed in writing), "the same rules of construction and evidence apply to contracts of this character, which apply to other ordinary contracts." The statute (2 R.S., 135, § 2) simply avoids the subsidiary engagement, unless such agreement or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged therewith. The requisition is satisfied when the promise and the consideration can be ascertained by the writings signed by the surety, without a resort to parol evidence. If a resort must be had to such evidence, in order to ascertain either, then, if that should be tolerated, the same serious dangers which the Legislature intended to prevent would be encountered. If, then, we consider only what is in writing in this case, and give to that its fair and reasonable interpretation, does it indicate all which the statute requires? The promise is clearly expressed in the indorsement. In that, the defendant substantially engaged that his principal should perform his contract. The principal (Hazewell) had contracted with the plaintiff to accept and pay for the shares of stock at the specified rates — buyer's option — in sixty days. Hazewell had accepted the stock which had been duly transferred to him, but had not paid for it within the stipulated time. It was contended by the defendant, that the receipt of the stock and the payment of the purchase money were to be simultaneous, and were, in effect, to constitute a single transaction, and that the guaranty did not extend to the payment if the two acts should be severed; and it was insisted that the plaintiff, by transferring the stock without exacting the payment therefor, would materially increase the risk of the defendant, if his engagement should still be continued. The risk was undoubtedly increased, but that does not relieve the defendant if he engaged that his principal should both receive and pay for the stock. A promise for the performance of an entire act is broken by the non-performance of a part of it. If the plaintiff had made a valid agreement with Hazewell, *Page 340 to allow him a credit beyond the sixty days specified in the contract, that might have relieved the surety upon another principle; but it does not appear that there was an agreement to extend the time of payment for any period, or that the payment should be postponed at all after the transfer was made. If the defendant was at all bound it was as well for the payment of the purchase money as for the acceptance of the stock.
If the defendant could be considered as having signed the indorsement alone, then he would not be held, as that does not express any consideration. There is no separate date to the guaranty, and from that fact, and the nature of the transaction, fairly inferable from what is written, the two papers must have been made at the same time. The plaintiff, if he required security at all, would naturally do so when the contract was executed and delivered. It would follow, as was remarked by Judge PRATT, in the case of the Union Bank v. Coster's Executors, that the guaranty should, within any rule of construction, be deemed part of the same transaction (with the principal agreement) and the two instruments should be read together as one contract." In the case of Brown v. Curtis (2 Comst., 225-233), I remarked, and, as I then understood, with the concurrence of five of my brethren, that "If the principal contract and the guaranty are both on the same piece of paper, and written at the same time, they are considered as one transaction, and the signature of the guarantor is deemed a subscription by him not only to the guaranty, but also to the acknowledgment of the consideration expressed in the note (principal contract), and both taken together are therefore considered as a compliance with the statute." Applying this rule to the case under consideration — and, unless we intend to overrule Brown v. Curtis, The Union Bank v. Coster'sExecutors in this court, and many cases in other courts, we must do so — and the two papers will read as follows: "In consideration that Theodore S. Draper now sells and agrees to deliver to George B. Hazewell, three hundred and fifty shares of the stock of the Pennsylvania and Lehigh Zinc Company, at buyer's option, in sixty days, at three and three-eighths dollars per share, I, the said George B. *Page 341 Hazewell, agree to accept and pay for the same, with interest at the rate of six per cent per annum; and I, George M Snow, guaranty that the said George B. Hazewell, shall so accept and pay for the same." The considerations are present and future. The sale was made at the time, and the transfer was to be made within the following sixty days. It was said in the case of the UnionBank v. Coster's Executors, that "there is a wide difference between the guaranty of an existing debt, and the guaranty of a debt to be contracted upon the credit of the guaranty. It is the difference between the past and a future consideration. A past consideration, without any participation or request of the promiser, is not sufficient to support any promise. But a promise to do an act in consideration of some act to be done by the promisee implies a request, and a compliance on the part of the latter closes the contract, and makes it binding." The judge who gave the opinion of the court below in this case, remarked, that a stranger looking at the whole instrument, and to that only, could not know whether the guaranty was an inducement to sell the stock, and was a constituent part of the consideration for his contract to sell and deliver, or whether some special consideration was paid to Snow for making it, or whether in fact it was made without any consideration. Now, it is not the question, what a stranger to the transaction would know to an absolute certainty to be the consideration for an engagement, simply from an inspection of the instrument; but the inquiry is, whether the terms of the instrument do not fairly import a specified and sufficient consideration. On looking at the instrument in question, can there be a reasonable doubt as to what was the consideration of the defendant's agreement, any more than in the case of the Union Bank v. Coster's Executors? Clearly it was, that the plaintiff agreed to, and would subsequently deliver to the purchaser the stock in question at the specified rate. The papers speak that language, and nothing else. It is not the rule, nor does the law or common sense require, that we should speculate as to possibilities in the construction of an instrument, when that has a fair and reasonable meaning, and *Page 342 especially when in doing so, we should overrule the principle utres magis valeat quam pereat. Upon the authority of the case of the Union Bank v. Coster's Executors, and of nearly every case upon the same subject antecedent to it, I should be inclined to sustain this action, unless we are coerced to a contrary course by the decision of this court in Brewster v. Silence. The judge who gave the opinion in that case, relied most upon the authority of the decision of this court in Hall v. Farmer (2Comst., 553). But the note upon which the guaranty was given in that case, was for a past consideration, in which the surety had no participation; and one of the four judges who decided that case concurred with the other three, on the ground that the contract of the guarantor was upheld by no consideration in fact. He said that he thought, that a collateral promise by a third party to pay a preexisting debt, for which he was in nowise liable, and where no new credit was given, could not be sustained without some other consideration which did not appear in that case. The same learned judge, however, had agreed with three of his associates in the next preceding case, Durham v. Manrow (2 Comst., 533), that an engagement upon the back of a promissory note, in the following words, "we guaranty the payment of the within note," was valid. In that case the note was given for a horse purchased at the time, and together with the guaranty was executed at the time of the sale. The two papers constituted a single transaction, and were considered together; and it was decided, that the consideration specified in the note applied to and upheld the guaranty. It seems to have been the opinion of the court, in Brewster v. Silence, that parol evidence of the attendant circumstances could not be adduced for the purpose of showing the nature of the consideration, but that the writings must speak for themselves. Judge WILLARD thought, that if the words, "for value received," had been inserted in the guaranty, they would have sufficiently indicated the requisite consideration. They would then have constituted an acknowledgment that the guarantor had received value to induce him to enter into his engagement, and in that event it would have been immaterial *Page 343 whether the consideration was past or present, or in what it consisted. This court did not probably intend, in that case, to overrule the principle that when the principal and secondary contracts are upon the same piece of paper, and were executed simultaneously by the same or connected parties, the consideration expressed upon the note may be applied to the guaranty. It is not to be presumed that a court of dernier resort disregarded its own repeated decisions, supported as they were by numerous adjudications of other respectable tribunals. I am inclined to think, that although it was supposed that a direct acknowledgment by the guarantor, that he had received value, would bind him, yet it was concluded that a written admission in effect by him, that his principal had received such value, did not sufficiently indicate a consideration connected with him to satisfy the requisition of the statute. When a valid consideration is received by the principal, at the time when another becomes his surety, it may well be inferred, that it is at the request of both; and as to the consequent obligation, it is immaterial whether the consideration is received by the surety or by his principal upon his request. But the words, "for value received," in the body of a note, do not clearly indicate that it is a present consideration, and therefore it is not necessarily inferable from them that it was one affecting the surety, or in which he at all participated. There is undoubtedly, as was said by one of my brethren at the close of the argument, a manifest distinction between a consideration mentioned in general terms, and one specifically defined. The statute, by preferring the definite article "the," may be so construed as to require the specification in referring to a consideration received by another, and not by the surety himself. If this court has not overruled the decision in the Union Bank v. Coster'sExecutors, that case, so far as it relates to the expression of a consideration in writing, is similar to the present one, and the defendant is legally bound to perform his engagement.
The judgment should be reversed, and there should be a new trial, the costs to abide the event of the suit.
Judgment affirmed. *Page 344