
    Thaddeus Wilson, Plaintiff and Respondent, v. Edward Roberts, Defendant and Appellant.
    1. Where, by a written and sealed contract between B -and O, B covenanted to furnish the brown stone for eight houses, and set them by a certain time, for $2,000, to he paid in notes of $500 each, to be made by B, and delivered as the work progressed, and 0 agreed to pay therefor in such notes accordingly; and 0 drew an order on B to deliver such notes to B “when the stone is delivered according to the contract, and at such times as therein stated,” and B afterwards accepted such order by an indorsement thereon signed by him, thus: “ Accepted Oct. 17,1856,” the contract of B is one to answer for the debt or default of 0, and the writing so signed by him does not express the consideration thereof, and is void by the statute of frauds.
    2. B, in such a case, is not hound to deliver his notes to B, unless the latter performs his contract according to its terms.
    3. 0 cannot, in such a case, extend the time for B to perform such contract, without the consent of B, without discharging B from liability.
    (Before Bosworth, Oh. J., and Woodruff and Moncrief, J. J.)
    Heard, June 6;
    decided, July 9, 1859.
    This is an appeal by the defendant from a judgment against him, entered on a verdict rendered on a trial had before Mr. Justice Slosson and a jury, on the lith of May, 1858.
    It was commenced on the 11th of April, 1857. The complaint avers that on the 15th of October, 1856, Thomas Beattie and ■ William H. Cronk, by S. W. Cronk, his attorney, entered into a written and sealed agreement, by which Beattie, “ for and in consideration of the covenants and agreements thereinafter contained,” agreed to furnish and deliver the brown stone for eight houses, and complete the houses by the 1st of November then next, for $2,000, and that Cronk thereby covenanted “ to pay for the same as follows: by delivering to said Beattie or his assigns, Edward Roberts’ (the defendant’s) notes at three months from their date, for the said sum of $2,000, as followsone note for $500 when the stoops to four houses are set; one note for $500 when the stoops to four more houses are set; one note for $500 when the doors to four houses are set, and the other note for $500 when the stone for the eight houses is all delivered and set.
    That on or about said 15th of October, 1856, Cronk made and delivered to Beattie an order in writing on said Roberts, reading thus:
    “ October 15, 1856.
    “ Mr. E. Roberts :
    “You will please deliver to Thomas Beattie, or order, the notes specified in the contract hereto annexed, made this day between Wm. H. Cronk and Thomas Beattie, when the stone is delivered to certain eight houses, according to the contract, and at such times as therein stated.
    - “ W. H. Cronk, by his attorney, S. W. Cronk.”
    That “ the defendant afterwards, and on or about the 17th day of October, 1856, duly accepted in writing.” That the time for Beattie to perform the contract was, afterwards, with Roberts’ assent, extended to the 21st of November, 1856, and that Beattie completed it within that time. That there was a failure and refusal to deliver the last note for $500 ; that it was deliverable on the 1st of December, 1856, and would have been due on the 4th of March, 1857; that the defendant on that day became indebted to the said Beattie in the sum of $500 ; and that by writing made and dated April 10, 1857, Beattie assigned the cause of action thus accruing to the plaintiff, and it prays judgment for $500, with interest from the 4th of March, 1857.
    The answer admits the making of the contract between Beattie and Cronk; the drawing of the order on Roberts; but denies due acceptance of it, and avers that the acceptance was indorsed on the order, and reads thus: “New York, Oct. 17, 1856. Accepted : Edward Roberts.” It denies that the time for performance by Beattie was extended by his assent to November 21, 1856, or that the contract was performed by that time; or that the fourth note was deliverable on the 1st of December, 1856; or that the defendant at any time became indebted to Beattie in any sum; or that he assigned the alleged cause of action to the plaintiff. As a second and separate defense, it avers that the alleged acceptance is a promise to answer for the debt or default of another, and that the defendant’s written agreement does not express the consideration thereof; and as a further and third defense, avers that “ the said alleged acceptance was without any consideration, and is void.”
    At the trial, the contract between Beattie and Cronk, and the order on Roberts, accepted in the- form stated in the answer of the latter, were produced and read in evidence. J. 0. Higgins, subscribing witness to the contract between Beattie and Cronk, testified that “ Beattie said he would not furnish stone without Roberts’. notes; he would not sign that contract or do work without Roberts accepted the order. * * Beattie said he
    would not furnish stone unless he had the responsibility of Mr. Roberts.” “ The contract may not have been signed on the day of its date; it was signed before Mr.. Roberts accepted; there may have been two or three days’ difference in their dates.” “ I think the order was attached to contract when delivered 'to Beattie; to the best of my recollection, I delivered both together.” S. W. Cronk, a witness for plaintiff, testified that he signed, as attorney of Wm. H. Cronk, a writing extending the time for Beattie to perform his contract twenty days from Kovember 1, 1856; that this was not done with Roberts’ consent; and that Beattie refused to sign such writing, saying he could not perform by the 20th; that the original contract was signed on the 15th of October, and that Roberts had no interest in it; that “ Mr. Beattie went on and completed the stone work on the 9th December, 1856; stone was delivered on the 8th of December; it was all set on the 9th;’’ and that the witness had “ refused to certify that the work was completed by the 20th of Kovember, 1856.”
    There was some evidence tending to show that the reason why the stone was not all delivered on the 20th, was, that there was no place to dump it in front of the houses where it was to be delivered.
    The Judge was requested to charge that, no consideration being mentioned in the memorandum signed by the defendant, it is void; and .that an extension by Cronk of the time for delivering the stone made a new contract, and discharged Roberts. He refused to charge either proposition, and the defendant excepted.
    
      He charged that the contract was not within the statute of frauds. To this the defendant excepted.
    He also charged that, whatever Cronk’s rights might be, if Beattie failed to deliver the stone by the 20th of November, and Beattie had not waived such default, it is not a default which affects Roberts. To this the defendant excepted.
    That “ the failure to furnish the stone by the 20th was a default which, in the terms of the contract, does not go to the exoneration of Roberts.” To this the defendant excepted.
    That “ Cronk and Beattie could extend the time of performance, but that would be no defense to Roberts. Roberts was not a surety, but an original undertaker for the delivery of his own notes; and this formed the consideration of the entire agreement of the plaintiff to furnish the stone.”
    “ The plaintiff, when he has established the delivery of the stone and their setting, establishes a right to recover.” The defendant excepted to the charge generally.
    The Jury found a verdict for the plaintiff for $542.08. Judgment having been entered on it, the defendant appealed to the General Term.
    
      James S. L. Cummins, for appellant.
    I. The order on Roberts by Cronk, and its acceptance by Roberts, is a guaranty. “ A guaranty is an agreement not under seal, whereby one person engages to be answerable for the debt, default or miscarriage of another person.” (Farmer v. Hall, 5 Denio, 487; Rogers v. Kneeland, 10 Wend., 220.)
    1st. The agreement is within the statute of frauds. There was a valid agreement on the part of Cronk to pay these notes to Beattie, and the obligation which this agreement,imposed upon Cronk was not released by Beattie when Roberts accepted the order of Cronk in favor of Beattie, but remained in full force and virtue. Therefore, if Roberts should fail to deliver the notes to Beattie according to the terms of Cronk’s order, Beattie could hold Cronk under his agreement.
    2d. Where the whole credit is not given to the person who is to answer for another, and when any portion of it is given to the person for whom he is to answer, the case is within the statute, and some notes, &c., must be in writing. (Brady v. Sackrider, 1 Sand., 514; Matson v. Wharam, 2 Term, 80; Rogers v. Kneeland, 10 Wend., 248; 13 id., 121.)
    3d. There must be a written memorandum expressing the consideration, subscribed by the party to be charged. (Parker v. Willson, 15 Wend., 347; Brewster v. Silence, 4 Seld., 214, 215; Bennett v. Pratt, 4 Denio, 286; Staats v. Howlett, id., 559.)
    II. The guaranty of Eoberts was without consideration, and therefore void.
    1st. It nowhere appears that Eoberts was indebted to Cronk, or was bound to advance his notes to Cronk.
    2d. It nowhere appears that Eoberts had any interest in the contract to furnish stone to the houses.
    3d. The contract with Cronk was not executed in consideration that Eoberts would give this acceptance; the contract itself shows the consideration on which the stone was delivered, which was the promise of Cronk to procure these notes, and not of Eoberts to give them; and no matter what parol understanding may have existed, it was merged in the specialty. (Schermerhorn v. Vanderheyden, 1 John. R., 140; Allen v. Segrist, 21 Wend., 628.)
    4th. The acceptance was not given until Beattie had absolutely bound himself to deliver the stone by signing, sealing and delivering to Cronk his part of the agreement.
    5th. Even if Beattie had executed the agreement to furnish the stone on his knowledge that Eoberts had accepted this order, yet that would not have been a consideration which would have supported this action against Eoberts; for, to be a valid consideration, it must be “ one that is either a benefit to the party promising, or some trouble or prejudice to the party to whom the promise is made." (2 Kent, 465, marg.; Jones v. Ashburnham, 4 East., 455; Lent v. Padelford, 10 Mass., 236.)
    Beattie is not a party to this acceptance, nor is there any pretense that Eoberts was benefited or Cronk prejudiced by Eoberts’ acceptance.
    IH. If the acceptance is not void under the statute of frauds, and if there was a valid consideration, yet the last note was never due on the acceptance.
    1st. It is a special acceptance to give the notes if the stone is delivered “ according to the contract.” It nowhere appears that the contract was fully executed on 1st November. It was not executed until after 20th of November or 1st of December.
    2d. The contract was never extended beyond 1st November. The contract is under seal, and could not be extended except by a sealed instrument. The extension is not under seal—never executed by Beattie—never went into effect. (Delacroix v. Bulkley, 13 Wend., 71; Eddy v. Graves, 23 id., 82; Allen v. Jaquish, 21 id., 628.)
    3d. The so-called extension, (and acceptance of the work under it,) if properly executed by Oronk, being after a breach, may waive the liability of Beattie for damages; but it is a new agreement, not contemplated by the acceptance. (Delacroix v. Bulkley, 13 Wend., 71; Eddy v. Graves, 23 id., 82; Allen v. Jaquish, 21 id., 628.)
    And in order to hold Boberts, a new promise to deliver notes under the new agreement must be shown, but it was not even done with his consent.
    IY. The claim of Beattie against Boberts, even admitting a valid one existed, is no ground for a recovery by the plaintiff in this cause, for it has never been assigned; it is but a collateral to the principal contract and principal debt, which is the contract of Beattie with Oronk, and that contract is owned by Beattie, and not by the plaintiff in this cause. (Jackson, ex dem. Barclay and Bayard v. Blodget„ 5 Cow., 202; Pattison v. Hull, 9 id., 747; Langden v. Buell, 9 Wend., 80.)
    Y. The Judge erred in refusing to dismiss the complaint.
    YI. The Judge erred in refusing to charge, as requested, “ that there being no consideration mentioned in the memorandum, it is void.”
    YII. The Judge erred in refusing to charge “ that an extension i of the time by Oronk in which the stone was to have been delivered makes a new contract and discharges Boberts, unless he, made a new agreement to give the notes under this extended' contract.”
    YIII. The Judge erred in charging that “this contract is not within the statute of frauds.”
    IX. The Judge also erred in charging thus: “If the stone was not all delivered by the 20th, is the defendant discharged from liability ? - This is a question to be determined by the contract itself. The defendant’s undertaking is to deliver to Beattie a note for $500 when the stone is all delivered and set to complete the eight houses. The failure to furnish the stone by the plaintiff was a default which, in the terms of the contract, does not go to the exoneration of Roberts.”
    X. The Judge erred in charging that, “ whatever rights it might have given Cronk against Beattie, if he had not waived it, it is not a default that affects Roberts. He could not be called on to give his note till the stone was all delivered and set; and when that event did take place, he was bound by the terms of his agreement to give his note whether the stone was delivered by the 20th November or not.” '
    
      B. W. Bonney, for respondent.
    I. The rulings of the Judge at the trial, upon questions of evidence raised by defendant’s counsel, were correct, and the exceptions to such rulings are not tenable.
    II. The motion by defendant’s counsel to dismiss the complaint was properly denied.
    III. There was error in the refusal of the Judge to charge as requested by defendant’s counsel.
    1. The agreement between Cronk and Beattie and the order on Roberts for the notes in the agreement specified and Roberts’ acceptance thereof, were all parts of and constituted one contract, and show a sufficient original agreement for good consideration to deliver the notes.
    Roberts was an original contractor, and not surety for Cronk. (O’Donnell v. Smith, 2 E. D. Smith, 124; Leonard v. Mason, 1 Wend., 522.)
    2. An extension by Cronk of the time for delivering the stone could not affect 'the undertaking of Roberts to give the notes. It in no wise concerned or affected him. (4 Barb., 614, 616.)
    IV. There was no error in the charge of the Judge at the trial, and none of the exceptions thereto are well taken.
    1. The contract of Roberts is not within the statute of frauds. Roberts was an original contractor, and not a surety or guarantor for Cronk.
    2. If the stone was not all delivered by 20th November, 1856, but was afterwards delivered and accepted and used by Cronk, the default in time would not, under the circumstances, exonerate Roberts from his obligation to give the notes.
    V. The exception to the charge generally is not well taken; it is not sufficiently definite to be of any avail.
    VI. The judgment entered on the verdict of the jury should be affirmed, with costs.
   By the Court—Bosworth, Ch. J.

By the contract of the 15 th of October, 1856, between Beattie and W. H. Cronk, the former covenanted, unconditionally, to furnish and deliver certain kinds of stone for eight houses, and Cronk covenanted as unconditionally to pay therefor $2,000, in notes made by the defendant at three months from their date; the notes to.be delivered separately as specified in the contract. By the obvious meaning and clear import of this contract, the stone was to be furnished to Cronk; and by the terms of the contract it is equally clear that Cronk covenants to pay the contract price.

The complaint alleges that the order drawn by Cronk on the defendant “was made and delivered to Beattie” “on or about said 15th day of October, 1856,” “which order the said defendant afterwards, and on or about the 17th day of October, 1856, duly accepted in writing.”

By that order and the defendant’s acceptance of it. the defendant agreed to deliver to Beattie such notes as Cronk had covenanted should be delivered to him, when by the terms of such covenant Beattie should be entitled to demand them.

The liability of Cronk upon his covenant continued unaffected by the defendant’s acceptance of this order. He remained liable absolutely and as principal.

In Brewster v. Silence, (4 Seld., 207,) the defendant, F. Silence, was sued as guarantor of “the payment of a note made by George Silence.” The jury found (3d.) “That the consideration of the note was a pair of horses sold to George Silence by the pajme of the note, and that a condition of the sale was that the note should be guaranteed by the defendant, and that the sale was not consummated until after the execution of the guaranty.”

(4.) “That after the execution of the note and guaranty, the horses were delivered by the payee, Thompson, to George Silence, who at the same time delivered the note and guaranty to Thompson.” (Id., 209, 210.)

In the present case, the "complaint treats Cronk as the principal debtor, as the complaint in that case treated George Silence as the principal debtor.

In that case the defendant was held to be not liable; the present case, if not as clearly within the statute of frauds as that, contains nothing which can exempt it from the operation of that statute. It is quite clear that the defendant’s contract is collateral, and is an agreement to be answerable for the debt or default of another.

In the case of Draper v. Snow, (6 Duer, 662,) the complaint averred extrinsic facts of the same nature as those attempted to be proved in the present case, and with great fullness and precision ; and on a demurrer to the complaint, judgment was given for the defendant.

The proof given in the present case, to the effect that “ Beattie said he would not furnish stone without Roberts’ notes; he would not sign that contract or do work without Roberts accepted the order,” even had it also been proved that he said this to Roberts is wholly immaterial.

If this was in truth the consideration of Roberts’ acceptance, his acceptance does not express that, nor any consideration for it, and is therefore void by the statute of frauds.

There is no averment in the complaint, nor any proof that, by agreement between all the parties, the stone was to be the property of Roberts when furnished. He is not liable for them as for stone sold and delivered to him.

We think Roberts’ agreement is an agreement to be answerable for the debt of Cronk. What was the precise relation existing between him and Cronk, the evidence does not disclose.

The consideration of it may be that which the testimony of Higgins was designed to establish. But though that may be so, the order and acceptance when construed together do not express that to be the consideration. - And-if they do not express that, nor any other sufficient consideration, then Brewster v. Silence and Draper v. Snow are conclusive against the defendant.

For aught that is contained in the order or in the acceptance, the consideration may as well have been some pecuniary compensation paid to Roberts by Beattie or by Cronk, as that which the testimony given by Higgins was introduced to establish. A pecuniary compensation paid by either, would be consistent with anything that is stated in the defendant’s contract.

A contract by one person to answer for the engagement of another, in order to satisfy the statute of frauds, must either state the consideration of it in direct and intelligible language; or its terms must be such as to import what the precise consideration is, as clearly as if formally stated in the most direct and explicit manner. (Union Bank v. Coster's Exrs., 3 Comst., 204; Draper v. Snow, 6 Duer, 665.)

Even if it be true, as the plaintiff contends, that Roberts “ was an original contractor, and not a surety or guarantor for Cronk,” then the time within which Beattie was obliged to perform on his part, as a condition to his right to recover, could not be enlarged without the consent of Roberts. It certainly could not be if the defendant’s position was that of surety.

This proposition is so obvious as not to require the citation of authorities in its support. The jury were instructed “ that a failure to furnish the stone by the 20th was a default which, in the terms of the contract, does not go to the exoneration of Roberts.” To this the defendant excepted.

This instruction withdrew from the jury the question whether Roberts had or had not assented; and by it they were told that any default on the part of the plaintiff was immaterial. If this be so, then Roberts would be liable, though the stone had not been furnished until after the lapse of one or more years.

We think this part of the charge is clearly erroneous.

The judgment must be reversed, and a new trial granted, with costs to abide the event.

Ordered accordingly. 
      
       See Church v. Brown, 21 N. Y. R., 315, 329.
     