This .court decided upon a former appeal in this action (77 App. Div. 332) that the letter,signed by the defendant’s intestate, addressed to the president of the plaintiff, was not within the Statute of Frauds and expressed a valid consideration, and that there was sufficient to justify an inference that, relying ón the execution and delivery of the letter, the plaintiff forbore the enforcement of the note in suit, which would be a sufficient consideration for the promises contained in the letter. ' That conclusion was upon the facts as they appeared upon the first trial, where the defendant was not called on, as the complaint was dismissed.
The question now presented is whether upon all the evidence there was any consideration for the promise of. the defendant’s intestate. Upon the new trial there whs evidence to show that on October 16,1897, the plaintiff held two notes of a corporation known as the John Good Cordage and Machine Company, indorsed by .John Good, one dated March 6; 1897, payable on demand, for $4,50,0, and one dated April 15, 1897, payable on demand, for $2,500, with which the defendant had no connection and upon which he was not liable; that prior to this time payment of these notes had been duly demanded; that the maker of the notes had failed to pay its current obligations; that there were proceedings pending for a' reorganization of the corporation and that a committee was appointed. for that'purpose, the defendant’s intestate being one of that 6om-mittee; that on the 15th day of July, 1897, in an action commenced in the Supreme Court of the State of New York, a receiver of the corporation, the maker of the notes, was appointed, and in the order appointing the receiver the corporation was enjoined from paying out, disposing of, or in any way transferring or delivering to any person any of the money, property or effects of said John Good Cordage and Machine Company, and that all of the creditors of the said John Good Cordage and Machine Company, and any and all other persons making claims against it, and the sheriff of any *385county in the State of New York, were enjoined and restrained from commencing, continuing or carrying on any suits or proceedings against said corporation, or issuing any execution, process or proceeding upon any judgment or order then obtained or which might thereafter be obtained against said corporation. The plaintiff, therefore, being the owner of these notes and being restrained by this order from commencing any proceeding of any kind against the corporation, the maker of the notes, the president of the plaintiff called upon the defendant’s intestate at his house in the city of New York. The plaintiff’s president asked the defendant’s intestate what prospect there was of collecting these notes of the John Good Company, in reply to which the defendant’s intestate said that he thought- they would be good for collection in a short time, as the company was trying to reorganize with every prospect of success, and that it was proposed to . issue bonds to the creditors of the corporation upon such'reorganization; that the plaintiff’s president then stated that he had been criticised for mak ing the loan upon these notes and did not like to state to the directors that they would have to accept bonds for them; that the plaintiff’s president then appealed to the defendant’s intestate to pay one-half of the notes on account of their long friendship, which appeal did not meet with a ready response; that the plaintiff’s- president then said that he would pay one-half of the notes and take bonds for the half he paid and asked the defendant’s intestate to pay the other half and take bonds; to this defendant’s intestate finally agreed; that the plaintiff’s president then wrote a letter to carry out this agreement so that he could show it to the directors of the plaintiff, and when it was suggested by the defendant’s intestate that the form of the letter should be changed, the plaintiff’s president said •: “ I don’t want to do that; I don’t -want to show that part to the bank; we will understand that. I am the president of the bank.” Whereupon this letter was signed by the defendant’s intestate. Prior to this time a notice of an application for the appointment of a receiver of the John Good Company in the State of New Jersey had been mailed to the plaintiff and a notice had also been mailed to the plaintiff that a receiver of the property of the corporation had been appointed by the Supreme Court of the State of New York. No proceedings had been taken by the bank to enforce *386the note prior to the appointment of this receiver in July, 1897, . although the notes had been due from March 6, 1897, and no proceeding was subsequently taken, and there is no evidence that any proceedings could have been taken against this corporation to recover upon these notes after the letter was written by the defendant’s intestate, which could have resulted in any benefit to the plaintiff, or that the notes then were,, or at any subsequent time ever were of any value, or that the plaintiff lost anything by a failure to proceed against the maker or indorser of the note.
At the' end of all the testimony the defendant moved to dismiss the complaint, which motion was denied, and the defendant excepted. The plaintiff then asked the court to direct a verdict for the plaintiff for the amount of the note. The defendant asked to go to the jury, which was denied, to which the defendant excepted, and the court then directed a verdict for the plaintiff.
I think it was error to direct a verdict for the plaintiff. If the inference that the plaintiff failed to proceed against the maker and indorser of the note, relying upon the defendant’s intestate’s promise contained in this letter could be drawn from the undisputed evidence produced by the plaintiff, that presumption, it seems • to me, was entirely overcome by the evidence offered by the defendant. Prior to July, 1897, the plaintiff had taken no steps to enforce the . notes although they were long overdue, and the maker of the notes had failed; a receiver of the corporation, the maker of the notes, was then appointed and all creditors were enjoined from prosecuting any claim against the corporation, and an application had been made for the appointment of a receiver in the State of New Jersey. It is quite evident from the testimony that any proceedings taken after July would have been entirely unavailing. In that situation the president of the plaintiff applied to the defendant’s intestate to make 'some arrangement by which he would be relieved from criticism by the directors of the bank for making the loan, and a verbal agreement was arrived at by which the defendant’s intestate would pay half the note, the president of the bank to pay the other half, and to relieve the president from criticism the letter in ques- • tion was written. If these'facts are true, it is quite evident that there was no consideration for this agreement. There is no consideration expressed in the agreement itself. There was no sug*387gestión made at the interview at which this letter was written that in consideration of the promise the plaintiff would delay in enforcing the note, or that the letter was written for that purpose; but it affirmatively appears that the letter was written at the request of the plaintiff’s president and to save him from criticism and no action was taken by the plaintiff relying on that letter. This being the object of writing the letter and it appearing that there was no promise, express or implied, that the plaintiff would not proceed to collect the notes, there is certainly no basis for holding that a forbearance was a consideration, and yet the only consideration suggested is this forbearance by the plaintiff. To spell out a consideration for this agreement it is necessary to infer that the letter was written to secure a forbearance and that in consequence of some verbal agreement, express or implied, when the letter was written the plaintiff did forbear the prosecution of the notes. There was no such agreement proved. It was held upon the former appeal that one could be implied from the facts as they appeared upon the first trial. Upon this trial we have express evidence of the circumstances attending the execution of this letter and that evidence negatives any agreement, express or implied, not to prosecute the note or to forbear in any way enforcing the claim of the plaintiff, but the evidence shows that the letter was written at the request of the plaintiff’s president to relieve him from criticism for making the loan upon these notes; that the enforcement of this obligation would have been impossible in view of the condition of the corporation, the maker, and that any proceeding against the corporation was enjoined by an order of the Supreme Court. • There is not the slightest suggéstion in the record that the indorser was financially responsible; that the defendant had any interest in the indorser, or that his responsibility was discussed or considered by the parties at the time of the writing of this letter. It seems to me from this undisputed evidence that any inference as to a consideration for this agreement to guarantee these notes was rebutted and that the defendant was entitled to the direction of a verdict or that in any event the question as to whether there was a consideration should have been submitted to the jury.
Judgment affirmed, with costs.