
    Parker vs. Bradley and others.
    Where, in the body of an instrument, a principal and several sureties were named as parties, but it was signed only by the latter, and there was nothing in the nature of it to prevent its operating without the signature of the principal: Held, that the execution must be deemed prima facie complete.
    Otherwise, semble, had it appeared that the sureties, at the time of signing, declared they would not be bound by the instrument except in the event of its execution by the principal.
    An instrument in the form of a bond, but not under seal, was executed by several as sureties for one G., who was not a party to it, with a recital and condition as follows: “ Whereas G. & P. have been partners, and G. has purchased of P. all his interest in the firm, and has agreed to pay off all the debts of the firm, &c.: Now therefore, the condition of, &c. is such, that if the said G. shall well and truly pay off the debts, &c. and save the said P. harmless, &c., then the obligation to be void, but otherwise to remain in full force and virtueHeld, that this being a mere guaranty on the part of the sureties, it was void under the statute of frauds ; inasmuch as the only consideration expressed for their undertaking was a past or executed one.
    Otherwise, liad the instrument contained matter showing that the consideration expressed was executed at the request of the guarantors; or, semble, had the instrument been under seal.
    And if the recital had been ambiguous in respect to the natuie of the consideration, the difficulty might have been obviated by extrinsic evidence. Semble.
    
    Assumpsit tried at the Oneida circuit in October, 1841, before Gridley, C. Judge. The action was by Edward L. Parker against Bradley and five others, upon an instrument in writing without seal, and bearing date February 15th, 1837. The instrument was as follows : “ Know all men by 'these presents, that we Addison R. Gilmore, principal, and R. A. Yoe, J. J. Bradley, J. Manning, A. Benedict, V. W. Smith, Julius H. Clark, as sureties, are held and firmly bound unto Edward L. Parker, of &c. in the penal sum of $5000,” &c., in the usual form of a joint and several bond, with a recital and condition thus: “ Whereas the above bounden Addison R. Gilmore and the said Edward L. Parker, have been partners in business under the name and firm of Parker and Gilmore, in &c., and the said Gilmore has purchased of the said Parker all his interest in the said firm, and has agreed to pay off all the debts of the said firm of Parker & Gilmore. Now therefore, the condition of the above obligation is such, that if the said Addison R. Gilmore shall well and truly pay off the debts against the said firm, and shall save the said Parker harmless from all damages, <fcc., for or by reason of any such debt or debts &c., then the above obligation shall be void, but otherwise remain in full force and virtue.
    (Signed) In the presence of Orville Eaa.il, James Barney, J. J. Bradley, J. Manning, A. Benedict, Y. W. Smith, R. A. Yoe, Julius H. Clark.”
    The above instrument was signed and delivered after Gilmore and Parker liad agreed to dissolve, and was designed as a compliance with one of the stipulations in the contract of dissolution. Gilmore testified that he handed the instrument sued upon to one of the defendants, stating to him the terms of the dissolution, but did not request either to sign; and that he (Gilmore) did not see it again until it had been executed by all the defendants. Other testimony was given showing that Gilmore had not paid off the firm debts, but had suffered Parker to be sued <fcc., whereupon the plaintiff rested. The defendants moved for a nonsuit on the ground, 1. That the instrument in question imported upon its face an incomplete execution, as Gilmore, the principal, had not signed it; and 2. That it was void under the statute of frauds, inasmuch as it expressed no consideration except a past or executed one. The judge directed a nonsuit, to which the plaintiff excepted; and now moved for a new trial upon a bill of exceptions.
    
      C. P. Kirkland, for the plaintiff.
    
      ¡3. Beardsley, for the defendants.
   By the Court,

Cowen, J.

The. main difficulty in this case arises from the accidental omission of the defendants to affix their seals to the, instrument in question, which bears, in other respects, the form of a common bond conditioned that Gilmore should pay the debts due from a previous firm consisting of .himself and the plaintiff. The intent is entirely plain, and the instrument might have been declared on as a promise that Gilmore should relieve the firm of its debts.

It was drawn with the name of Gilmore inserted in the 'body as one of the obligors;- and he not having signed, this is alleged as evincing an incomplete execution of the instrument—an intent that it should not be considered as executed till his name was added. It is entirely clear, however, that the objection is by no means conclusive. The other promissors might all have intended to be bound without him; and there is nothing in the form of the instrument to prevent its haying effect without his name. The circumstances of the case, as derivable from Gilmore’s evidence, were sufficient to have warranted the jury, in case the question had been submitted to them, in believing that such an effect was intended. Indeed, it has I see been ho]den in a late case that a signer cannot insist on a contrary intent as qualifying the execution,. unless it appear he declared at the time of signing that he would not be bound without the signatures of others "named in the bond. If he execute it generally without such declaration, he shall be holden though he stand alone. (Haskins v. Lombard, 4 Shepl. 140.) About the same distinction had been before held in Cutter v. Whittemore, (10 Mass. Rep. 442,) and Scott v. Whipple, (5 Greenl. 336.) See Johnson v. Baker, (4 Barn. & Aid. 440,) and Leaf v. Gibbs, (4 Carr, & Payne, 466.)

But the paper is a mere guaranty; and the only consideration recited in the condition is, that Gilmore and the plaintiff having been partners, said Gilmore has purchased of the said Parker all his interest,” &c. and “ has agreed to pay off all the debts,” &c. It was insisted in argument that though this be the mere expression of a past consideration, yet there is room to infer a request from the defendants. If the recital were at all ambiguous in this or any other respect, the difficulty might, according to the modern cases, be cleared up by extrinsic evidence. (Haigh v. Brooks, 10 Adolph. & Ellis, 309.) But I do not see that it is. The instrument speaks in the perfect tense, neither mentioning any request, nor presenting a case in which we can infer that there was one from these defendants. They do not appear in any way to have had an interest which would have led them to make a request. We were not pointed on the argument to any other part of the instrument importing a consideration; nor do we see any.

We may regret with counsel that, under the circumstances, with adequate funds in the hands of the defendants or some of them, the plaintiff should fail for want' of a mere formality. But we see no method of relief consistently with the rules of law.

New trial denied. 
      
       Further as td the rule on this subject, with its qualifications, see United States v. Leffler, (11 Peters' Rep. 86;) Pawling and others v. The United States, (4 Cranch, 219, 221;) Police Jury v. Haw, (2 Mill. Lou. Rep. 42, 48.)
     