
    Forman and Evans vs. Stebbins and Bush.
    In an action on a written promise to pay and discharge certain notes, describing them by their dates, amounts, &c. and as having been given by one F. to the plaintiffs; held, that the possession and production of the promise by the plain tiffs was presumptive evidence of its having been made to them, though no promisee was named in it.
    
      Held further, that as the notes produced by the plaintiffs on the trial corresponded with those described in the promise, their identity should be presumed, in the ' absence of evidence to the contrary, and that the plaintiffs need not even prove their execution.
    Assumpsit, tried before Dayton, C. Judge, at the Monroe circuit, in April, 1839. The plaintiffs proved and gave in evidence a note or undertaking signed by the defendants, as follows :
    “We, for value rec’d, promise to pay and discharge two two several notes given by John Furey to John Forman and A. G. Evans [the plaintiffs,] one for one hundred and ninety dollars payable in one year, and one for the same amount—both with interest—the last payable in two years—and dated fifth January, 1836. Feb’y 16, 1836.
    (Signed) J. N. Stebbins,
    H. Bush.
    Said notes were given for lots No. 79, 87, 111, 112 and 113, in Independence.”
    The plaintiffs’ counsel then produced two notes as follows :
    “ $190. Twelve months after date, for value received, I promise to pay John Forman and Albert G. Graves or order one hundred and ninety dollars with interest from this date. Witness my hand and seal this 5th day of January, A. D. 1836.
    (Signed) John Furey.” [l. s.]
    The second note was in all respects like the first, except that it was payable “ twenty-four months after date.”
    Mr. Mumford, the attorney for the plaintiffs, testified that he received the three papers above mentioned enclosed in a letter from Ohio, with direction to collect the amount from-the defendants ; and that he applied to Stebbins, one of the defendants, for payment, who promised to arrange the same. He had no distinct recollection whether he showed any of the papers to Stebbins. (
    
    The judge decided that, to entitle the plaintiffs to recover,, they must prove the due execution of the two notes purporting to be made by Furey, or must in some other way identify those notes with the notes described in the undertaking of the defen dants. The plaintiffs were nonsuited, and excepted to the opinion of the judge. They now moved for a new trial on a bill of exceptions.
    
      G. H. Mumford, for the plaintiffs.
    
      H. Humphrey, for the defendants.
   By the Court,

Bronson, J.

If the instrument signed by the defendants is not a promissory note, (see Hough v. Gray, 19 Wend. 202, Ketchell v. Burns, 24 id. 456, Leonard v. Mason, 1 id. 522,) it is nevertheless valid as a guaranty or other contract to pay the two notes made by Furey. There may be a doubt upon the face of the instrument whether the promise was made to the plaintiffs or to Furey. It is said on behalf of the defendants, that Furey probably sold the lots for which his notes were given to the defendants, and that they thereupon undertook “ to pay and discharge,” or, in other words, to indemnify him against the notes. There is undoubtedly some force in this suggestion; but the case was not put upon that ground at the circuit. The plaintiffs were not nonsuited on the ground that the promise was not made to them, but because they had not proved or identified the notes of Furey. This is a bill of exceptions, and the parties cannot go beyond the point on which the exception rests. But as this question may arise upon another trial, we think it proper to say, that there was sufficient presumptive evidence that the promise was made to the plaintiffs. The written contract is found in their hands and produced by them; and, in the absence of all proof to the contrary, the fair inference is that the writing was made and delivered to them.

The defendants by their contract admitted the execution of the two notes of Furey, and it was no more necessary for the plaintiffs to prove the execution of those notes than it would be to prove the hand writing of the maker in an action against the endorser of a promissory note. The only proper question was, whether the two notes of Furey produced on the trial were the same notes which the defendants had promised to pay. As the notes produced by the plaintiffs corresponded in all respects with the notes described in the contract,- and as there was no evidence tending to a different conclusion, I think their identity was sufficiently established. The nonsuit must therefore be set aside.

New trial granted.  