Opinion
Argued March 25, 1881
Decided April 26, 1881
Grover Cleveland for appellant.
Sherman S. Rogers for respondent.
The first point made by the appellant is, that the mortgage given by her was without consideration and is void.
It is so, that the appellant took no money consideration, nor any strictly personal benefit, for the giving of the mortgage by her. It was made for the benefit of others than her, entirely as a security for debts owing by them, and to procure for them further credit and favor in business. In other words, the lands of the appellant became the surety for the liabilities of the business firm of which her husband was a member. It is so, also, that the contract of surety needs a consideration to sustain it, as well as any other contract. ( Bailey v. Freeman, 4 Johns. 280; Leonard v. Vredenburgh, 8 id. 29.) But that need not be something passing from the creditor to the surety. Benefit to the principal debtor, or harm or inconvenience to the creditor, is enough to form a consideration for the guaranty; and the consideration in that shape may be executory as well as executed at the time. ( McNaught v. McClaughry, 42 N.Y. 22; 8 Johns., supra.) Now, here was an agreement by the plaintiff to extend the payment of part of the debt owing by the principal debtor for a definite time, if the debtor would procure the mortgage of the appellant as a security for the ultimate payment of the amount of the debt thus extended. ( Sage v. Wilcox, 6 Conn. 81; Breed v. Hillhouse, 7 id. 523.) Though the actual execution of the mortgage by the appellant was on a day subsequent to that of the agreement between the creditor and the principal debtors, and subsequent to the dates of the extension notes, the mortgage and the notes were made in pursuance of that agreement, in consideration of it and to carry it out. The findings are full and exact on this point, and are sustained by the testimony. There is no proof that the actual delivery of the notes and mortgage was not contemporaneous; though the dates of the notes and the mortgage and the entry of credit in the books of the plaintiff do not correspond. All was done in pursuance of one agreement, and the plaintiff was not bound to forbearance until the mortgage was delivered. It was not until then that the agreement to forbear was fixed and the consideration of benefit to the principals was had. It was not, therefore, a past consideration.
It is not necessary to consider whether the appellant is not estopped by the agreement of February 25, 1876, from setting up a want of consideration.
The second point made by the appellant is that one of the notes given on the extension was paid by the principals, and that the land is, by so much as the amount of that note, relieved from the lien of the mortgage. The difficulty in upholding this position is in the facts. Doubtless it was the purpose of the principals, when they went to the creditor with the checks, that the note should be paid. They never made the positive offer of them to the plaintiff to that end, in such way as that the plaintiff must take them for that explicit purpose or reject them. If the principals had insisted that the checks should be applied in payment of the notes, they would have been; but upon being given their option to have them thus applied and their credit on open account stopped, or applied on open account and their credit thereon continued, they preferred the latter. The creditor recognized the right of the debtors to apply where they chose, and but exercised its right to urge and convince to a different application. The appellant, as surety, cannot take any advantage from what passed, for there was never an application to the notes insisted upon by the principals, or made in fact, or more than spoken of, and there was acquiescence by each of the principals in the course that was taken. The checks were not received as a payment; they were not left as a payment; they were left in abeyance, their ultimate application or return to be determined after further consideration. Moreover, by the subsequent agreement, made by the appellant, the note is treated as unpaid, and enters into, and the subject-matter thereof is part of, the joint debt of the principals, assumed by the appellant's husband, guaranteed by her and for the payment of which she pledged her separate estate. This agreement was made on good consideration, expressed in the instrument, and unless the agreements of parties who are married women are to be nothing more substantial than summer winds, she is estopped thereby.
The third point is that there should not have been a personal judgment against the appellant. The judgment is based upon the guaranty contained in what we have called the subsequent agreement, and which contains the individual and personal guaranty by the appellant of the payment of a sum named, upon demand therefor made of Clarence A. Blake, and his refusal or neglect to pay. It is averred in the complaint that a demand was made upon Clarence A. Blake. There is a general denial in the answer of the allegations of the complaint, save those that state the execution of the mortgage and the agreement. There is no finding that a demand was made. There is no request to find that there was not a demand. There is no proof that there was a demand in fact made. Demand and notice are often duties of imperfect obligation, and may in such case be omitted, if the facts are such that no benefit can result from the making of them ( Hickling v. Hardey, 7 Taunt. 313); but then he who should have made the demand must show the inutility of them, and that was not done here. The appellant is a surety, and demand of the principal is a part of the contract ( Nelson v. Bostwick, 5 Hill, 37); it is one of the conditions precedent to her obligation to pay. If this position had been taken or relied upon at the trial, we should feel obliged to maintain it here. There is nothing in the case to show that it was suggested or thought of at the trial, where the plaintiff might have shown a demand made, or the utter inutility of one. The denial in the answer is not one that would positively indicate a purpose to make the matter of a demand one of the contested issues on the trial, though it would have been enough on which to take the position there. It does not appear that the point was made at General Term; rather, from a perusal of the opinion there delivered, we should gather that the position taken was not that there had been no ground for personal liability established, but that the decision of the trial court had made the personal liability absolute and not contingent upon a deficiency arising upon a sale of the lands, a position which is met by the General Term in its observation that though such is the decision, the judgment is as the appellant would have it, in that respect. On the whole we think that the case shows no error in this particular calling for a reversal or even a modification.
The fourth point is, that if there was no payment of the first note that fell due, then there was an extension of time given to the principals, that discharged the lands. This is claimed to grow out of the application of money on open account instead of on the note. It is said that the note not having been paid, the time of payment of it was by that act or omission extended. The test is, could the surety have paid the note, and enforced the consequent liability against the makers?
There was no valid agreement between them and the payee for an extension, which either could have maintained against the other. The payee could not, on the ground of a valid extension, have lawfully refused the offer of the surety to pay the note; nor could the makers on that ground have lawfully resisted the claim of the surety for the amount, had it been paid. Besides, upon this point as well as upon others in the case, the subsequent acts and agreements of the appellant estop her from setting up such facts against a recovery.
It follows that the judgment appealed from should be affirmed.
All concur.
Judgment affirmed.