ent; it merely presented the question whether the defendant's promise was a collateral one, and so was within the statute of frauds. And Adney's case also was one of collateral and contingent nature, and so not provable before commissioners of bankruptcy.

In the case at bar it appears that Hooper, on the twenty-fifth of November, 1824, gave his promissory note to the plaintiffs for six hundred and eighty-nine dollars and eleven cents, and on the next day gave them another note for one thousand one hundred and six dollars and sixty-four cents, both payable on demand; and that the defendant, on the fourteenth day of January, 1825, signed the agreement, on which the present action is founded; and he states that in consideration of a conveyance of a tract of land to him by Hooper, and of the plaintiff's promise to forbear to sue Hooper on said notes of hand, for and during the term of twelve months from the date of this contract, and of their actual forbearance during that term, he would pay the plaintiffs the sum of one thousand three hundred dollars at the end of said twelve months, unless the same should then have been paid by said Hooper. The consideration of this promise is a legal one; and no question is made as to its sufficiency. No demand was made on Hooper at the end of the twelve months, though for many months after that time he remained solvent and amply able to pay the notes. And it is not denied that the plaintiffs did forbear to sue Hooper during the twelve months. On these facts it is contended that this action is not maintainable, on account of the omission to demand payment of Hooper at the end of the term of credit to the defendant, and to give notice of nonpayment by him; and also on account of the laches of the plaintiffs in not collecting the money of Hooper in his lifetime. With respect to this latter objection, we would observe that it has been repeatedly decided that mere delay to pursue the principal and collect the money of him, does not discharge a surety or guarantor, provided such delay be unaccompained by fraud, or an agreement not to prosecute the principal, made without the assent of such surety: Lock v. United States, 3 Mason 446; Hunt v. Bridgham, 2 Peck. 583 (13 Am. Dec. 458); United States v. Kirkpatrick, 9 Wheat. 724; Kennebec Bank v. Tuckerman, 5 Greenl. 130 (17 Am. Dec. 209). As to the objection that no demand was made on Hooper, or notice of non-payment given to the defendant, the cases before cited as applicable to such a guaranty as the present, furnish an answer. The liability of Hooper on his notes to the plaintiff was an absolute one at the time he signed the guaranty; they had then a perfect right of action upon them against Hooper, without any demand upon him. The defendant did not employ the language made use of in the case of Sage v. Wilcox, "I guaranty the payment of the note;' but

it is: "I promise to pay the sum of one thousand three hundred dollars at that time," the end of twelve months, "unless the same shall have been paid by said Hooper." If the defendant at that time had called on the plaintiffs to pay the notes according to his promise, he would have learned that they had not been paid, and that he must pay them. Nothing being necessary to be done on the part of the plaintiffs to perfect their rights as against Hooper, this case does not come within the principle of the decisions before mentioned, in which demand and notice were held necessary. The plaintiffs knew that Cutts had received a conveyance of a tract of land from Hooper by way of indemnity against loss in consequence of the guaranty; and the land thus conveyed was stated at the argument to be worth one thousand three hundred dollars or more; and this fact was not denied. This very circumstance naturally lulled the attention of the plaintiffs, and led them to the conclusion that the defendant would promptly fulfill his engagement, attend to his cwn interest, and take notice of those facts which might seriously affect it. Instead of all which, within less than six months after giving the guaranty, he conveyed the land, and permitted Hooper to receive the avails of it. He has thus voluntarily given up his indemnity, and has placed himself on whom to cast any blame. There is no proof that the defendant ever informed the plaintiffs of the above fact until after the commencement of the present action.

As to the quesion of damages, we are of opinion that the defendant is answerable to the extent of one thousand three hundred dollars, and interest theron from January 14, 1826, unless the payments which have been made by Hooper have reduced the sum now actually due below the amount. It does not appear that those payments were specially directed to be applied in part discharge of the defendant's liability;" and such being the case, the plaintiffs had the right to make the appropriation, and consider the sums paid as going to extinguish, pro tanto, the portion of the two notes not collaterally secured by the guaranty of the defendant: Brewer v. Knapp, et al., 1 Pick. 332.

According to the agreement of the parties, a default must be entered.

AN ORAL PROMISE TO ANSWER FOR THE DEBT OF
ANOTHER CAN NOT BE ENFORCED

DEXTER V. BLANCHARD

11 Allen 365 (1865)

Contract brought upon an oral promise by the defendant to pay the plaintiff a bill for the hire of horses and carriages, and for injury to a wagon.

At the trial in the superior court, before Morton, J., the plaintiff offered to prove that the horses and carriages were hired and the injury done by the defendant's minor son, to whom the credit therefore was given; and that not long after the date of the last charge the defendant's son became sick, and while so sick the plaintiff several times demanded payment of him, and thereupon the defendant verbally promised to pay the plaintiff's bill if the plaintiff would not trouble his son any further; to which the plaintiff agreed. The son afterwards died. It was admitted that the bill was not for necessaries.

The judge ruled that upon these facts the action could not be maintained, and a verdict was returned accordingly for the defendant. The plaintiff alleged exceptions.

BIGELOW, C. J. The ruling of the court was in accordance with well established principles. The defendant's promise, although it may have been made on a good consideration as to the plaintiff, was nevertheless a promise to pay the debt of another, and no action can be maintained upon it. Gen. Sts., c. 105, § 1. The fallacy of the argument urged in behalf of the plaintiff lies in the assumption that there was in fact no debt due from the son of the defendant, because he was a minor at the time he undertook to enter into a contract with the plaintiff. A debt due from a minor is not void; it is voidable only; that is, it cannot be enforced by a suit at law against the contracting party, on plea and proof by him of infancy. But it is voidable only at the election of the infant, and until so avoided it is a valid debt. Nor can a third person avail himself of the minority of a debtor to obtain any right of security or title. Infancy is a personal privilege, of which no one can take advantage but the infant. Kendall v. Lawrence, 22 Pick. 540; Nightingale v. Withington, 15 Mass. 274; McCarty v. Murray, 3 Gray 578.

The effect of the doctrine contended for by the counsel for the plaintiff would be that a verbal agreement to answer for the debt of another would be valid, if it could be shown that the original contracting party could have established a good defense to the debt in an action brought against him. We know of no principle or authority on which such a proposition can be maintained. It certainly would open a wide door for some of the mischiefs which the statute of frauds was designed to prevent.

The case for the plaintiff derives no support from the argument based on proof of an agreement by the plaintiff to forbear to sue the defendant's son, in consideration of the promise of the latter to pay the debt. It is perfectly well settled that it is not a sufficient ground to prevent the operation of the statute of frauds, that the plaintiff has relinquished an advantage or given up some lien or claim in consequence of the de

fendant's promise, if that advantage or relinquishment did not also directly enure to the benefit of the defendant. It is only when such relinquishment or surrender operates to transfer to the defendant the right, interest or advantage which the plaintiff gives up, or to create in the defendant some title or benefit derived from that which the other party surrenders, that the promise can be regarded as an original undertaking, and not within the statute. Curtis v. Brown, 5 Cush. 488, and cases cited.

Exceptions overruled.

WHERE A GUARANTY IS MADE AT THE SAME TIME THE PRINCIPAL CONTRACT IS MADE, ONE CONSIDERATION IS SUFFICIENT FOR BOTH

SMITH V. MOLLESON

148 N. Y. 241; 42 N. E. Rep. 669 (1896)

Appeal from supreme court, general term, First department. Action by James B. Smith against Phebe G. Molleson as surety on the bond of Pratt & Molleson to plaintiff. A judgment in favor of plaintiff, entered on the verdict directed by the court, was affirmed by the general term (26 N. Y. Supp. 652), and defendant appeals. Affirmed.

O'BRIEN, J. The defendant has been held liable as surety upon a bond given to secure the performance, by the contractors, of a building contract, dated November 1, 1888, in which they agreed to furnish, cut, set, and clean all the new granite work for the enlargement of a public building in the city of New York. The plaintiff agreed to pay the contractors for this work the sum of $30,000, in monthly payments of not to exceed 80 per cent. "of the estimated value of the work performed on the building," the balance, or final payment, to be made when the work was completed. The work was to be done according to drawings and specifications referred to in the contract, and the payments made upon the certificate of the plaintiff's superintendent. The rights and obligations of the parties are specified in the contract with minute detail, and among other things, it was stipulated that, in case the contractors failed to perform, the plaintiff might take possession of the work and complete it at the contractor's expense. It is conceded that they failed to perform and that the plaintiff was obliged to complete the work himself at an expense of several thousand dollars more than the contract price. It was agreed between the plaintiff and the contractors that the latter should give to him a bond to insure the faithful performance of the contract, and, in pursuance of this agree

ment, the defendant, in behalf of the contractors, executed, under seal, and delivered, the instrument upon which this action was brought. It bears date December 27, 1888,,and was executed subsequent to the contract, and one of the conditions is that the contractors should well and truly perform the contract referred to, according to its terms, in which case the instrument should be void and of no effect, but that, in case they failed to so perform, the defendant would pay to the plaintiff his damages, sustained by reason of such non-performance, not exceeding a sum named. It is conceded that the plaintiff sustained damages by reason of the failure of the contractors to perform their contract, and the recovery is within the limits of the bond. The defense is that the bond was given without consideration, and that the defendant became released from its obligations by reason of changes in and departures from the contract guaranteed, without the defendant's consent, by the parties thereto. At the trial a verdict was directed for the plaintiff.

The plaintiff entered into the contract and bound himself, according to its terms, upon the faith of the promise of the contractors to give the bond, and it is admitted that if this was concurrent with the execution and delivery of the instrument, it would constitute a sufficient consideration. But, since the bond was given afterwards, and, as the defendant claims, subsequent to the time that the contractors had entered upon the actual performance of the contract, it is insisted that it required some new consideration. If it be true that the evidence in the case would warrant a finding by the jury that the contractors were engaged in the performance of the contract when the bond was given, it would also be true that this was by the grace and pleasure of the plaintiff, and not by virtue of any right under the contract. Their right to insist upon performance, as against the plaintiff, and to receive the benefit of the contract, was not perfected until the bond was given. Whatever the contractors may have assumed to do before, it was only upon the delivery of the bond that the contract became complete and binding upon the plaintiff and hence the mutual obligations imposed upon the contractors at one time, and upon the plaintiff at another, furnished a consideration for the bond. Bank v. Coit, 104 N. Y. 532, 11 N. E. 54.

The other defense rests mainly upon a construction of the contract which the defendant claims to be the correct one. It should be observed at the outset that the contract guarantied is, by reference, made a part of the bond, and therefore, in order to determine the scope of the defendant's undertaking, the two instruments must be read together. It is true, as the learned counsel for the defendant contends,