Rosenbaum v. Gunter

By the Court. Woodruff, J.

If the decision of this appeal depended upon the inquiry, what is to be deemed the law of this state in regard to the necessity of expressing a consideration in cm endorsement, without seal, upon cm agreement, by which the performance of the latter is guaranteed; and if, for this purpose, it was necessary to harmonize the decisions from Parker v. Wilson, 15 Wend. 343, down to Manrow v. Durham, 2 Comst. 583; Hall v. Farmer, Ib. 553; Brown v. Davis, Ib. 225, we might well despair of attaining a satisfactory result.

But in this case the instrument of guaranty is under seal; and the act of sealing so far expresses consideration in a legal sense as to be deemed a compliance with the statute. Such was the view expressed in the opinion in Douglass v. Howland, (24 Wend. 45,) in which Judge Cowen says, “We have held, again and again, that a seal expresses a consideration within the meaning of the statute.” This distinction was approved in Bennett v. Pratt, (4 Denio, 286 ;) and By Chief Justice Bronson, (who contended most strongly for a less liberal construction of the statute than his associates, in most of the recent cases,) in Thompson v. Blanchard, (3 Comst. 341.)

This disposes of the only ground of appeal mentioned in the notice of appeal, or in the argument of the appellant’s counsel, or upon which a non-suit was urged in the court below. Had it been insisted, that the plaintiff did not prove enough to make the defendant liable upon his guaranty, it may be doubtful whether the plaintiff could recover without some proof of the tenant’s default; but that question does not now arise. The judgment should be affirmed.

Judgment affirmed.