Otis v. Haseltine

By the Court, Sanderson, C. J. The plaintiffs sold by contract in writing to the defendant Haseltine a certain invoice of Chinese goods, for which Haseltine agreed to pay ten thousand dollars in gold coin of the United States; the goods to be sold at auction as then advertised and the proceeds to be paid to the plaintiffs by the auctioneers. If the proceeds proved insufficient to pay the ten thousand dollars, the balance was to be paid by Haseltine’s note at sixty days, indorsed by his co-defendant King. This contract was signed by plaintiffs and Haseltine on the 29th of December, 1862. On the back of the contract, bearing the same date, is the following indorsement:

“ I hereby agree to indorse William Haseltine’s note as provided in the within agreement.

(Signed:) “James L.' King.”

This indorsement was executed by King before the delivery of the contract to the plaintiffs, and before the delivery of the goods to defendant Haseltine. The ten thousand dollars were not paid by the proceeds of the sale, and the plaintiffs demanded the note called for by the contract. Defendants refused to give it, but promised to pay the balance in gold when due, which they failed to do, hence this action. Plaintiffs had judgment payable in gold against both defendants who appeal.

It is insisted upon behalf of both defendants that the judgment is erroneous So far as it directs payment in gold, because the contract was made before the passage of the so-called “ Specific Contract Act” of 1863, and therefore not governed by its provisions. This question has already been decided by ns in the case of Galland v. Lewis, 26 Cal. 46, in which we held that the Act applied to contracts made before its passage.

On the part of the defendant King, it is insisted that his contract was “ a promise to answer for the debt, default, or miscarriage of another,” within the Statute of Frauds, and [83]void because it does not express the consideration. We think that this question also has been decided against the appellants in several cases in this State.

Evoy v. Tewksbury, 5 Cal. 285, was an action to recover rent. Evoy leased certain lands to one McMakin. At the foot of the lease, and on the day of its date, Tewksbury wrote and signed the following promise: “I hereby agree to pay the rent stipulated above when it shall become due, provided that the said McMakin does not pay the same.” The Court held that this agreement was a part of the lease and not within the Statute of Frauds, but was to be regarded as an original undertaking, upon the strength of which McMakin obtained possession of the land and enjoyed its use.