The transaction between the plaintiffs and the defendant ivas really a sale of goods by the former to the latter. The defendant did not wish to take or select them at the time of the contract, and he took an order or due bill that he or the person to whom he might wish to transfer the due bill could select them as he pleased thereafter. It was not the less a sale of goods to the defendant because ho took a due bill instead of the goods, and an action can be sustained for goods sold.
The doctrine now is that if the note of a third person is taken, either for goods sold at-the time of making the contract or upon an antecedent debt, it is not considered a payment unlea.v agreed to be taken as payment. The inquiry in each case then is whether the creditor or vendor agreed to take the note in payment. (Porter v. Talcott, 1 Cowen, 383, per Sutherland, J.) Looking at the facts in this case we shall have no difficulty in determining at whose risk the note was to be taken, or rather in saying that the vendors did not intend to take it at their own risk. The vendors knew nothing about the maker; the purchaser was believed to be responsible and he offered to guarantee the note. Clearly then the plaintiffs sold upon the credit and responsibility of the defendant alone, as much as if the defendant had given his own note alone for the goods. The time when the defendant would be liable to pay would be after the plaintiffs had failed in their legal endeavors to collect the amount of the note of the maker. When that time had arrived, the plaintiffs might at their option sue upon their guarantee or for goods sold in the same manner as if the defendant *363had given his own note. The case of Butler V. Haight, (8 Wend. 535,) decides this case.
It is true that the guarantee is void, (Hunt v. Brown, 5 Hill, 145 ; Packer v. Willson, 15 Wend. 343 ;) but that does not affect the question or the principle. Though the plaintiffs could not recover on this guarantee, yet we can see, through the fact of the guarantee and the circumstances attending the sale, that the plaintiffs did not intend to take, nor the defendant to transfer, the note in payment for the goods, and that is the material fact to govern the case.
The judgment recovered against the maker of the note will of course be the property of the defendant, and the plaintiffs should perhaps have offered to transfer it to him on the trial. But as no objection was taken for such omission .on the trial, it cannot be taken here.
I think a new trial should be denied.
McKissock, J., concurred.
Beardsley, Ch. J.Looking at the case as presented by he pleadings and evidence, and the objections made to a recovery, I think a new trial should not be granted. What is spoken of as a guaranty of the Sprague note, was an undertaking in form, for the debt, &c. of Sprague, but no consideration for the promise being expressed in the writing executed by the defendant, it was void. Such are the words of the statute. (2 R. S. 135, § 2.)
The goods paid by the plaintiffs on the due bill, may, with propriety, be said to have been sold to the defendant, this note, with the guarantee, and the other two notes, being received in payment for the goods. The case turns wholly upon the effect of the transfer of the Sprague note to the plaintiffs. As the written guarantee in form, was void, it cannot affect the case any way, and the oral evidence given on the trial shows that the defendant made an unqualified engagement that the note should be paid or he would make it good. This meant that he would pay for what the plaintiffs advanced in goods for him. *364The payment of the goods by the plaintiffs as they had agreed with the defendant was not contested, and assumpsit for goods sold was maintainable. (8 Wend. 535.)
New trial denied.