Pratt v. Hudson River Railroad Company. at the trial, on account of the omission, and overruled. The power of this court to amend, in furtherance of justice, being thus established, a stronger case than the present, for the exercise of the power, could scarcely be presented. The cause of action stated in the complaint, and that established upon the trial, are substantially the same. If the defendants' counsel was right in the position that the measure of damages would be different in the two cases, this would be a conclusive objec tion to the amendment. But it is obvious that it could make no difference in the damages, whether the defendant refused to sign the contract, or first signed, and then refused to permit it to be executed. The loss to the plaintiffs must be the same in either case. The difference, therefore, between the complaint as it is, and as it should be, being merely formal, and not affecting, in any degree, the merits of the case, the pleadings should, I think, be conformed, pursuant to the Code, to the facts proved. (See also Lounsbury v. Purdy, 18 N. Y., 515.) The defendants have no reason to complain of the rule of damages adopted by the referee, it being quite as favorable to them as the law and facts of the case would warrant. The judgment, at general term, should be reversed, and that of the special term affirmed. COMSTOCK, Ch. J., WELLES and BACON, Js., concurred; DENIO, J., concurred in the result on the ground that there was a valid contract for the performance of the work; DAVIES, CLERKE and WRIGHT, Js., were for affirmance. Judgment at general term reversed, and that on referee's report affirmed. Church v. Brown. L. V. & E. T. CHURCH v. BROWN. A written undertaking to be responsible "for all such goods as W should buy of C," indorsed upon, and executed at the same time with, a contract between W and C for the purchase and sale of the goods, contains a sufficient expression of the consideration to be valid under the statute of frauds. The guaranty, without reference to the contract on which it is indorsed, discloses that the consideration is the delivery of the goods at the request of the guarantor: such request is in effect stated in the engagement to be responsible for goods to be delivered to another. This case distinguished from Brewster v. Silence (4 Seld., 210), and the latter reviewed and disapproved by CoмSTOCK, Ch. J. APPEAL from the Supreme Court. Action upon a written guaranty. The referee, before whom the cause was tried, found these facts: The plaintiffs, on the 1st day of July, 1852, made a contract with one White, which was reduced to writing and signed by the parties, by which the plaintiffs agreed, during one year, to sell to White such articles of hardware, from their store, as he might desire, upon a credit of one year, with interest after six months from the time of purchase. Simultaneously with the execution of this agreement the defendant subscribed this instrument indorsed upon the agreement: "1 will be responsible for all such goods as Mr. White shall buy of the Messrs. Church, within one year from date, and which shall not be paid for according to the terms of the within contract. July 1, 1852." The referee decided that the promise of the defendant was a promise to answer for the debt, default or miscarriage of another, and void, because no consideration was expressed therein. He ordered judg ment for the defendant, which, having been affirmed at general term in the seventh district, the plaintiff appealed to this court. The case was submitted on printed arguments. Campbell & McMaster, for the appellants. Church v. Brown. WRIGHT, J. The statute requires every special promise to answer for the debt, default, or miscarriage of another, to be in writing, subscribed by the party to be charged thereby, and expressing therein the consideration. The consideration and promise must be expressed in the instrument, or the agreement is void (2 R. S., 135). The referee held, in this case, that the agreement of the defendant was void, because no consideration was expressed therein, as required by the statute; and this is the single point for review. Neither the English statute of frauds, nor ours, prior to the Revised Statutes, in terms, required the consideration to be expressed in an agreement to answer for the debt or default of another; but the courts had held, before the verbal change of the statute in this respect, that the consideration and promise must both be expressed in the writing. (Sears v. Brink, 3 John., 210; Douglass v. Howland, 24 Wend., 35.) The Revised Statutes, therefore, added nothing but what had been judicially determined as necessary to fulfill the requirements of this noted statute, as it was originally adopted in England, and in this State. I know of no case, in the courts of this State, before or since the Revised Statutes, holding that where, from the whole instrument, the consideration does not expressly, or by necessary inference, appear, the omission may be supplied by parol proof, and the statute satisfied in that way. An undertaking to answer for another, is unquestionably within the statute unless the consideration be expressed in the instru ment subscribed by the promisor. But how expressed? Certainly it has never been deemed absolutely necessary that any particular form of words should be used in expressing the consideration. It has been held, often, that a seal expresses the consideration within the meaning of the statute. The same rules of construction are applicable to collateral, as to original undertakings, in implying or inferring the consideration from the terms of the instrument. It is enough, said PRATT, J., in delivering the opinion of the court in the Union Bank v. Coster's Executors (3 Comst., 203), if, from the whole instrument the consideration expressly, or by necessary inference, appears Church v. Brown. so that it be clear that such, and no other, was the consideration upon which the promise was made. (Douglass v. Howland, 24 Wend., 35; Allen v. Jaquish, 21 Wend., 628.) To hold, at this late day, that, for the purpose of satisfying the statute, a particular form of words, expressive of the consideration, must be written in a guaranty, would be to overthrow a series of decisions extending through the last half century. In Stadt v. Lill (9 East., 348), the written guaranty was in these words: "I guarantie the payment of any goods which I. Stadt delivers to I. Nicholls." It was objected that there was no consideration stated for the promise. But Lord ELLENBOROUGH held that the stipulated delivery of the goods to Nicholls, was a consideration, appearing on the face of the writing, and when the delivery took place, the consideration attached. In Bailey v. Freeman (11 John. R., 221), the defendant signed a guaranty attached to the agreement of one Blanche, to deliver merchandise to the plaintiff, in these words: "I do hereby guaranty the performance of the above agreement, and every part thereof, on the part of N. Blanche, to be performed at the time, and to the amount therein mentioned." It was urged that the guaranty was void for not expressing a consideration, but the court said that the guaranty was part of an entire contract, consisting of the agreement signed by Blanche, and the guaranty signed by the defendant, and, that as a consideration was apparent on the face of the original agreement, the agreement was good. In Rogers v. Kneeland (10 Wend., 219), it appeared that L. Morgan & Sons wrote to N. Rogers & Sons, requesting them to indemnify Kneeland against damages and costs, in a litigation which Kneeland was conducting for the benefit of the Morgans. Rogers & Sons indorsed upon this letter, and signed the following promise: "We will promptly comply with the request of L. Morgan & Sons, as contained in the within order." The objection that there was no consideration expressed in it, was overruled. The judgment of the Supreme Court was unanimously affirmed in the Court of Errors (13 Wend., 115), WALWORTH, Chancellor, delivering the opinion of the court, in which he said, "there is sufficient consideration on the face of Church v. Brown. this agreement, to take it out of the statute of frauds, if, from the terms of the whole agreement (the letter and guaranty), thus taken together, a sufficient consideration for the collateral promise or guaranty appears, it is sufficient." In Marquand v. Hipper (12 Wend., 520), the guaranty was in these words: "I do guaranty and agree to become security for the amount of any value, in silver or money, not exceeding $400, that Marquand & Brother, may, from time to time, for the ensuing two years, put into the hands of I. I. M., for the purpose of manufacturing into work, and that, upon such deficiency being proved, if said M. refuses to pay, that I will assume to pay the same, with interest on the amount from time due." The court said: "The consideration sufficiently appears on the face of the instrument; it is the putting into the hands of M., by the plaintiff, of any amount of silver, not exceeding $400, for the purpose of being manufactured by him." In Staats v. Howlett (4 Denio, 559), the guaranty was as follows: "To B. P Staats-I hereby obligate myself to hold you harmless for any indorsement you may make for, or have made for the late firm of P. H. & F., not exceeding $5,000." The court held that the consideration was expressed, so far as related to future indorsements. In Union Bank v. Coster's Executors (3, Comst., 203), Hechscher & Coster, merchants in New York, sent to Kohn, Darrow & Co., in New Orleans, a letter of credit as follows: "Sirs-We hereby agree to accept and pay, at maturity, any draft or drafts on us, at sixty days' sight, issued by Kohn, Darrow & Co., of your city, to the extent of $25,000, and negotiated through your bank." At the foot of this was the following guaranty, signed by John G. Coster: "I hereby guaranty the due acceptance and payment of any draft or drafts issued in pursuance of the above credit." The court held that, construing the two instruments together as one instrument, the consideration for the guaranty was sufficiently expressed. In Gates v. McKee (3 Kern., 232), the guaranty was as follows: "Mr. Gates-Sir:-I will be responsible for what stock Mr. E. McKee has had, or may want hereafter, to the amount of $500." It was held that the instrument expressed the con |