
    John T. Howard, Surviving Partner of J. Howard & Son, Plaintiff, v. William R., and Elizabeth T. Holbrook, Executors, &c., of Darius B. Holbrook, deceased, Defendants.
    1. The words “for value received,” in a contract, sufficiently express the consideration within the requirement of the statute of frauds.
    2. Where the contract sufficiently expresses the consideration on its face, a new trial will not be granted for error in admitting evidence of the actual consideration in support of the validity of the contract.
    3. In proving a tender, under an agreement by defendant’s testator, that he would purchase a bond if offered to him. on a specified day, the witness testified that on that day he presented it at' testator’s place of business, he not being there and being represented to be out of town, that at a subsequent day the witness called there, and found a person who answered to the name, and acknowledged the agreement to be his, but said he could not redeem the bond, and who, on being told that the witness had been there twi^ before, said that he had been out of town. There was no evidence that the testator was not out of town, or that he was out of town and within the State. Edd, that the testimony was prima facie sufficient to excuse a personal tender on the day, and was sufficient to go to the Jury on the question of identity. Robertson, J., dissented.
    (Before Bosworth, Ch. J., Moncrief and Robertson, J. J.)
    Heard, February 13, 1862;
    decided, March 29, 1862.
    This was an action for the price agreed to be paid by • the defendants’ testator to the plaintiff and his deceased partner, for a bond of the Newfoundland Electric Telegraph Company, under an agreement in the following words:
    
      “For value received, I hereby guarantee to Messrs. J. Howard & So’n, that the bond of the Newfoundland Electric Telegraph Company, No. 17, for two hundred pounds sterling, shall be of the value of nine hundred and sixty dollars on the seventh day of March, 1855, at which price, and at which date, I will purchase the same, if offered to me. •
    “March 8th, 1853.
    “D. B. Holbrook.”
    The complaint set forth the partnership of the plaintiff and John'Howard, deceased, under the firm of J. Howard & Son, and that Darius B. Holbrook, the defendant’s testator signed the agreement in question. It further alleged that on the 7th of March, 1855, the bond therein mentioned was not of the value of 960 dollars, or of any value, and that on or about that day, it was offered to him, and he refused to purchase the same; that the plaintiff had offered such bond to the defendant, and demanded payment of the sum of 960 dollars, which they refused. The plaintiff demanded judgment for $960, and interest. The defendants’ answer was a general denial. The material portions of the evidence are stated in the opinion. The cause was tried on November 19th, 1861, before Chief Justice Bosworth, and a Jury, who found a verdict for the plaintiff. And the- Court directed the defendants’ exceptions to be heard in the first instance at General Term.
    
      Alexander W. Bradford, for defendants, submitted the following points.
    I. The action cannot be maintained on any construction that can be given to the contract.
    1. The ■ agreement to purchase is merely executory of the guaranty, and the guaranty is void, because it does not sufficiently express a consideration. (3 R. S., 5th ed., 221; Hall v. Farmer, 5 Denio, 484.)
    2. Admitting that the words value received, express a sufficient consideration, (Brewster v. Silence, 4 Selden, 207,) there is no proof in the case of the happening of the contingency, which would fix the liability of the guarantor. The' only authorities to be found in support of the proposition that the words, “value received,” express sufficient consideration are cases on promissory notes which have been overruled. (Draper v. Snow, 20 N. Y. R., 331.)
    II. If the instrument be not a guaranty, it is not valid and binding as a contract for the repurchase of the bond therein mentioned, because •
    I. It was then a contract for the sale of a thing in action, for a price exceeding fifty dollars, and no note or •memorandum in writing was signed by the parties to be charged thereby, and it is not pretended, that any part of the purchase-money was paid by the buyer.
    2. If it be a valid contract for the repurchase of the bond in question, it was nevertheless subject to the condition therein contained, viz., that the value of the bond in the market, was less than the sum of nine hundred and sixty dollars. There is no proof in the case on this point; and the plaintiff should have shown it affirmatively and positively, to entitle him to retain the judgment.
    III. If the instrument be not a guaranty, or a contract for sale or repurchase, it is then a wager and the defendants are clearly not liable. „
    IV. The testimony of Norris, as to the consideration of the instrument, is inadmissible. (Hall v. Farmer, supra.)
    V. There is no sufficient proof of a demand on D. B. Holbrook. The testimony is but vague and uncertain.
    
      Lewis L. Delafield, for plaintiff, argued the following points:
    1. This agreement is to be regarded as a contract of purchase and sale.
    1.. There are two distinct parts to the agreement, on either of which the plaintiff might maintain an action.
    2. The plaintiff has elected to treat this as an agreement of purchase and sale.
    3. It was therefore unnecessary that he should offer any proof of the value of the bond on the 7th of March, 1855.
    
      II. If, however, this agreement is to be construed a guaranty, the words, “ for value received,” are a sufficient expression of the consideration. (2 R. S., 317, § 2,4th ed.; opinion of Judge Comstock, in Church v. Brown, 21 N. Y. R., 332; and see pp. 316, 321; Watson v. McLaren, 19 Wend., 563; Douglass v. Howland, 24 Id., 40; Staats v. Howlett, 4 Denio, 563; Prosser v. Luqueer, 4 Hill, 423; Brewster v. Silence, 4 Seld., 215; Cooper v. Dedrick, 22 Barb., 517; Miller v. Cook, 23 N. Y. R., 495.)
    III. A consideration being expressed in the agreement, the introduction of testimony showing the real consideration was, either proper, or, if improper, was immaterial. (Code, § 176; Edmonston v. McLoud, 16 N. Y. R., 545.)
    IV. The presentation of the bond and agreement at Hr. Holbrook’s office, on the 7th of March, he being absent from the city, and the subsequent presentation and offer of the bond to him within a reasonable time after he returned to town, were an ample compliance with the condition contained in the agreement.
    1. He who prevents a thing being done, shall not avail ' himself of the non-performance he has occasioned. (Fleming v. Gilbert, 3 Johns., 531.)
    Eo party can insist upon a condition precedent, when its non-performance has been caused by himself. Such non-performance cannot prevent the accruing of a right, or its enforcement by action. (The Mayor v. Butler, 1 Barb., 326; Smith v. Gugerty, 4 Id., 621; The People v. Bartlett, 3 Hill, 570; The People v. Manning, 8 Cow., 297.)
   Bosworth, Ch. J.

The instrument of March 8th, 1853, signed by the'testator, is, on its face, a valid contract. As an original undertaking or agreement, this point is free from difficulty. As an agreement within the statute of frauds, it is good on its face, according to the recent case of Miller v. Cook, (23 N. Y., 495.)

The admission of the deposition ©f Eorris, is not an error requiring a new trial. If the agreement on its face, expressed sufficiently a consideration that made it obligatory, proof of the actual consideration could not possibly prejudice the defendants.

The charge of the Judge is not given. It should be presumed to have related to the only question of fact that could be properly submitted, viz., whether the witness Keeler, actually presented the bond (Ho. 17) to the testator, and he refused to redeem, it, stating that“ he had not got the money,” &e., &c. The witness is quite confident that he presented it on the 7th of March, 1855, at the testator’s place of business, he mot being there, and being-represented to be out of town. That he subsequently called and found there a person who answered to the name, who acknowledged the guaranty to be his, but said he could not redeem it»- and who, on being- told that the witness had been there twice before, said that he had been out of to„wn.

If the evidence was insufficient to be submitted to a Jury, a new trial should be granted, as the Court refused to dismiss the complaint, and the defendants excepted.

It may be that a tender to the testator personally, was indispensable, even though he was out of town, if within the State. (Smith v. Smith, 2 Hill, 351; Watson v. Hetherington, 1 Car. & Kir., 36.)

But as the testator did not refuse to pay, on the ground that no tender had been made to him personally on the 7th of March, and as he admitted he had been out of town, and did not suggest that he had not, nevertheless, been out of the State, I think the evidence is, prima facie, sufficient to show that his absence was conceded to be such as made a tender to him personally, excusable.

There was no attempt by the defendants to prove that he was not out of town, or was within the State.

Evidence that on the two or three occasions, when the witness first called at the testator’s place of business he was told the testator was out of town and that there was no one there to represent him, and that subsequently he found there a person answering to the name, who said -he was the man, and admitted the contract to be his, but refused to pay the money, is competent to go to a Jury upon the question of his identity, and sufficient to uphold a verdict, in the absence of all evidence tending to raise any suspicion of mistake or collusion. (Roden v. Ryde, 4 Ad. & Ellis N. S., 626; Murieta v. Wolfhagen, 2 C. & K., 744; Hunt v. Maybee, 3 Seld., 270, 271; Hatcher v. Rocheleau, 18 N. Y. R., 86, 92, 96.)

The fact asserted by the witness, that he called at Mr. Holbrook’s place of business, was not attempted to be discredited, by any cross-examination of the witness, or other evidence tending, or apparently designed to throw any doubt upon its accuracy. Under such circumstances, and in the absence of all evidence tending to excite a suspicion that the witness did not see Mr. Holbrook, but on the contrary saw and conversed with some other person, I think the evidence sufficient to warrant the inference „that he saw Mr. Holbrook, and had with him the conversation testified to. I think, therefore, that the judgment should be affirmed.

Moncrief, J., concurred in this opinion.

Robertson, J., (dissenting.)

There are two stipulations contained in the brief instrument which forms the subject of this action, as I read it: the first is an undertaking that a certain chose in action shall be worth a certain sum of money, on a certain day, and the second is an agreement to buy it at that price, on that day, if offered to the party signing it; on the first, the plaintiff’s firm would have been entitled to recover only the difference between the market value and the stipulated value; on the second, the plaintiff’s firm could only recover the stipulated price, after a tender of the bond sold, to the purchaser.

The plaintiff is probably right in claiming, that the use of the words “ value received ” and the terms of the contract would be sufficient to constitute “an expression of the consideration,” within the meaning of the statute to prevent perjuries, (2 R. S., 317, §2, 4th ed.,) under the decisions in this State. (Watson v. McLaren, 19 Wend., 563 ; Douglass v. Howland, 24 Id., 40; Staats v. Howlitt, 4 Denio, 563; Prosser v. Luqueer, 4 Hill, 423; Brewster v. Silence, 4 Seld., 215 ; Looker v. Dedrick, 22 Barb., 517; Church v. Brown, 21 N. Y. R., 316, 321, 332; Miller v. Cook, 23 N. Y. R., 495.) But the stipulation for indemnity hardly brings it within the statute, as it is not a guaranty for the payment of the bond, but for its market value, like that of any other commodity. At the same time, I do not perceive that the contract to purchase the bond in question, contained in the instrument in question, was subject to any condition as to its being worth less than the price named. The agreement gave the plaintiff’s firm the option of either to sue upon the contract of indemnity for the difference between the named and the market price, or for the whole specified price on a tender of the bond.

There was no evidence given of the value of the bond, so that the plaintiff could not recover damages upon the contract of indemnity, except those which were merely nominal.' If the action be for the price of the bond, a difficulty may arise from want of proof of a tender to Mr. Holbrook on the 7th of March, the time fixed in the contract. The application on that day was only at his office, (if it were his;) the subsequent tender made to some person, in the same place, calling himself by his name, is subject to considerable question as to the identity of the person. It was made, in a place supposed td be his office, where he had a desk, to some one calling himself by his name. This is hardly enough on the question of identity; as to which its efficacy must rest on the facts of its being the office of the defendants’ intestate, and this declaration of the person as to his name.

In regard to the question, whose office it was, it is very plain, that as the witness did not know Mr. Holbrook personally, he could not legally know the place to be so, or his place of resort or business, unless he knew it to be so, by repute or hearsay, neither of which would be legal evidence of the fact, on a question of the identity of a person in it

The declaration of the person applied to, as to his reputed name would clearly "be no evidence against the defendants, unless it be assumed in advance, that such person was the defendants’ testator, which begs the question. Mor would a single declaration to that effect amount to evidence that the name was the reputed one of the party assuming’ it; such a fact can only be proved by repute among those familiar with the person.

It is true, that proof that a person, really cf the same name with the party sued, executed a contract, is prima fade evidence that they are the same, in reference to a contract sued upon; but similarity of names has never been held to be evidence of identity in any other transaction necessary to establish a liability. It was held in the English Oourt of Exchequer, by all the Judges, (Bayley and Vaughan, B.B., and Ld. Lyndhurst, Ch. B.,) in the case of Whitelock v. Musgrave, (1 Cr. & Mees., 511,) that although proof of the handwriting of a subscribing witness was evidence of an execution of an instrument by some one, of the name mentioned in it, further evidence was necessary of the identity of such person with the defendant. The same views had been previously expressed by one of the same Judges, in Nelson v. Whittal, (1 Barn. & Ald., 21.) In a subsequent case of Roden v. Ryde, (4 Q. B., [Ad. & E.,] 626,) Ld. Denman attempted to answer the argument of the hardship of imposing upon the defendant the necessity of proving a negative, by considering the danger of suing the wrong person, and suggesting that the evidence could be easily baffled by introducing the defendant and asking if he were the person. Both these answers would be easily disposed of in this case; the real defendant is dead, no one therefore knows how to prove an alibi, and there is no danger except of paying costs on serving a summons on the wrong person.

The necessity of some proof of identity in persons living in large cities has. been fully recognized in Hubback on Successions, (pp. 103, 464, 465,) and in regard to a register of persons’ names in other cases. (Birt v. Barlow, 1 Doug., 171; Bain v. Mason, 1 C. & P., 202, n.; Wedgwood’s Case, 8 Greenl., 75.) In Buller’s Nisi Prius, (1716,) it was held, that a man’s calling himself by a particular name was not sufficient evidence of his being so. In Jones v. Jones, (9 M. & W., 75,) all presumption of identity was repelled by proof that several persons of the same name lived in the same place. No case is to be found where a person’s calling himself by a particular name on one occasion was held evidence of his being a defendant of the same name; if such were the law, it might often be found extremely difficult in a large city to prove the negative.

The two separate facts, therefore, of the ownership of the office, and the reputed name of the person, not being proved, the combination is not of much advantage. Proof that a person called himself by a particular name, in an-office, by common report belonging to a person of the same name, will not establish the identity of such person with the defendant.

It would be a dangerous relaxation of the rules of evidence to allow the temporary assumption of a name to be evidence that the person assuming it bore the name and was the defendant; although it was made in his reputed office. Annals of criminal jurisprudence- are filled with frauds committed by such means ;: no person of ordinary prudence would pay a large sum of money upon such-evidence of identity.

Besides this, the demand and refusal was not explicitly applicable to the $960 mentioned in the contract. The-demand was for the money in the bond and the refusal-, was to redeem it; possibly, however, the Jury were at liberty to infer it referred’ to- the- price of the article;

Mr. Holbrook’s absence- from town was no excuse for not presenting the bond- on the proper day, if he was within the State. (Watson v. Hetherington, 1 Car. & Kir., 36; Smith v. Smith, 2 Hill, 351.) There was no evidence that he left town to avoid a tender, or that he resorted to any artifice to prevent it. The plaintiff’s firm accepted the contract in its present general form, and therefore took the risk of finding the defendant on the day fixed. There was, therefore, no absolute hindrance of the performance by the defendants’ testator. Whether there was a waiver of performance in dne time, will remain to be determined, after the identity of the party refusing it on a subsequent day, shall be established by proper evidence, on a new trial.

Evidence was also admitted to show the actual consideration for the agreement in question: this was unnecessary, if the rule of law be as already stated, that the consideration must be expressed on the face of the instrument; and as an exception was taken to its admission, whatever may be its immateriality, such exception furnishes sufficient ground for a new trial.

For these reasons there should be a new trial in this case and the judgment reversed, the costs to abide the event.

Judgment for the plaintiff.  