
    Kimball vs. Newell.
    A. executed a covenant by which he undertook to become surety for the faithful performance of B.’s covenant to pay rent. Held, that A.’s covenant was valid, though the covenant of B. was void for coverture.
    On error from the superior court of the city of New-York. Newell brought an action of covenant against Kimball in the marine court of the city of New-York, claiming to recover certain rent due on a lease to one Theodosia Knowlton, for whom the defendant had become surety. On, the trial, the plaintiff gave in evidence the following instruments,:
    “ This is to certify that I have hired and taken from Daniel Newell the house in Nassau-street &c., for one year, to commence on the first day of May next, at the yearly rent of four hundred and fifty dollars, payable quarterly. And I do hereby promise to make punctual payment of the rent, in manner aforesaid, and quit and surrender the premises, at the expiration of the term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted. Given under my hand and seal the 3d day of March, 1840.
    Mrs. T. Knowlton. [l. s.]
    In consideration of the letting of the premises above described, and for the sum of one dollar, I hereby become surety for the punctual payment of the rent, and performance of the covenants, in the above written agreement mentioned, to be paid and performed by Mrs. Theodosia Knowlton, and if any default should be made therein, I do hereby promise and agree to pay unto the said Daniel Newell .such sum or sums of money as will be sufficient to make up such deficiency, and fully satisfy the conditions of the said agreement, without requiring any notice of non-payment, or proof of demand being made. Given under my hand and seal the 3d day of March, 1840.
    M. T. C. Kimball, [l. s.]”
    
      It appeared that Mrs. Knowlton occupied under the lease, and that a balance of rent, amounting to $31,94, remained due the plaintiff. It further appeared that Mrs. Knowlton was a married woman at the time the lease was executed; and the defendant contended that, inasmuch as her covenant was void by reason of coverture, his was also void. The marine court held otherwise, however, and rendered judgment in favor of the plaintiff, which was afterwards affirmed by the superior court on certiorari, and the defendant brought error.
    ’ R. H. Shannon, for the plaintiff in error.
    
      Howard Onderdonk, for the defendant in error.
   Nelson, Ch. J.

The defendant having consented to become bound as surety for the rent of the premises leased to Mrs. Knowlton, it is but reasonable to presume that, if he was not well acquainted with her situation before, he then made some enquiries into her circumstances and condition, and thus became fully possessed of the facts which he now sets up as a ground of discharge.

But conceding that the defendant had no knowledge of the social condition of Mrs. Knowlton, and that he supposed she would be legally holden for the rent as it accrued, I am still of the opinion that he is liable on his contract. The doctrine for which his counsel contends is thus stated by Theobald: “ The obligation of the surety being accessory to the obligation of some person who is the principal debtor,' it is of its essence that there should be a valid obligation of a principal debtor. The nullity of the principal obligation, necessarily induces the nullity of the accessory.” (Theob. Prin. & Sur. 2.) This is undoubtedly correct as a general rule; but it has its exceptions, and the case before us is one of them,

Mr. Chitty says: “ The rule that a party cannot be liable upon a contract of guarantee, unless the principal has incurred a legal responsibility, is true, in some instances, in form or words, rather than in substance. (Chitty On Contr. 499.) He adds: “ In the case of a guarantee to answer for the price of goods to be supplied to a married woman, or goods (not necessaries) to bo sold to an infant, or other persons incompetent to contract, no doubt the party guaranteeing, though professedly contracting only in the character of surety, would be responsible.” (Id.) He refers to the case of Maggs v. Ames, (4 Bing. 470,) which was an action against the defendant as surety for a married woman.. There the question was whether the undertaking of the defendant was an original one, so as not to require it to be in writing. The court held, that it was collateral, and therefore should have been in writing. But neither the counsel nor court supposed that the defendant would not have been bound, if the contract had been in writing-. On the contrary, that was assumed. In the case of White v. Cuyler, (6 T. R. 176,) it was impliedly at least conceded by Lord Kenyon, that a guarantor or surety for a, feme covert would be liable on his contract. (See also Chitty On Contr. 515; Pitman On Prin. & Surety, 13; Buckmyr v. Darnall, (2 Ld. Raym. 1085;) Harris v. Hunchback, (1 Burr. 373;). Chapin v. Lapham, (20 Pick. 467.)

The doctrine of the civil law is very clear and satisfactory on this subject. It is as follows: “ Although the obligation of a surety be only an accessory to that of the principal debtor, yet he who has bound himself surety for a person who may get himself relieved from his obligation, such as a minor, or a prodigal who is interdicted, is not discharged from his suretiship by the restitution of the principal debtor: and the obligation subsists in his person; unless the restitution were grounded upon some fraud, or other vice which would have the effect to annul the right of the creditor.” (Dom. B. 3, tit. 4, § 1, art. 10, Strahan's ed.) Again: “ If the' principal obligation was annulled only because of some personal exception which the principal debtor had, as if it was a minor, who, in consideration of his being under age, got himself relieved from an engagement by which he suffered some prejudice, and that there had been no fraud on the creditor’s part; the restitution of the minor would have indeed this effect, that it would annul his obligation to the creditor, and his engagement to save harmless his surety, if he desired to be relieved from it. But the said restitution of the minor would not in the least invalidate the surety’s obligation to the creditor. For it was only to mhke good the obligation of the minor, in case he should be relieved from it on account of his age, that the creditor took the additional .security of a surety.” (Id., B. 3, tit. 4, § 5, art. 2; and see 1 Ev. Poth. On Obl. 237.)

I am satisfied that the decision of the court below was right, and that the judgment should be affirmed.

Beardsley, J.

I think the defendaht was estopped from denying the competency of Mrs. Knowlton to.bind herself by the covenant she assumed to execute. The defendant by his covenant admits she was thus bound, and he shall not be allowed to gainsay it by alleging her incapacity to make a legal contract. Had she been induced to enter into this engagement by fraud or imposition, or upon a usurious consideration, the case might have been otherwise ; but the defendant, although a surety, cannot be permitted, on the ground now set up, to deny the legal existence of a covenant which is explicitly conceded by his own deed. (Co. Litt. 352, a, note 306; 1 Stark. Ev. 302, Am. ed. of 1830; Greenl. Ev. §§ 22 to 26, and the notes.)

The judgment of the court below is right, and should be affirmed.

Judgment affirmed.  