Opinion of the Court, per WRIGHT, J. the referee clearly erred, in holding that there was no consideration expressed in the defendant's guarantee, as required by statute. The present case cannot be distinguished from that of the Union Bank v. Cos[ * 320 ter's Executors; the controlling principle of which decision was necessarily involved, and re-affirmed and approved in Gates v. McKee, (13 N. Y. 232). On the 1st of July 1852, the plaintiffs entered into an agreement with Thomas White, to sell to the latter, from their store, such articles of goods, in the hardware line, as he might want, on a credit of one year; interest to be charged thereon, after six months from the time of purchase. In case, at any time after the expiration of one year from the date of the contract, the plaintiffs desired to close up the contract, they were to give White one month's notice of such intention, and, for the balance of the account, they might hold against him unpaid, according to the terms of the contract, they agreed to take good responsible notes, due in six months from the time of notification. Simultaneously with the execution of this agreement, the defendant indorsed upon it the following guarantee:-"I 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. (signed) M. Brown." Now, construing these instruments together as one, the consideration plainly appears on the face of the writing. It is the sale and delivery, by the plaintiffs, to White, of such goods as the latter might want from their store, for one year from the date of the agreement. Paraphrased, the contract would fairly read in this way: "In consideration that you, the Messrs. Church, sell and deliver to Thomas White, from your store, such articles. of goods, in the hardware line, as he may want, on a credit of one year, interest to be charged thereon after six months from the time of purchase, I, Morris Brown, will be responsible for all such goods as White shall buy Opinion of the Court, per WRIGHT, J. within one year, and which shall not be paid for according to the terms of the contract." The case is a plainer one than that of the Union Bank v. Coster's Executors, as parol evidence was not required to show that the original and collateral contract related to the same subject-matter, or to aid the court in giving a true construction to any ambiguous terms in the agreement, as there were none. It seems a clear case, in which the *consideration is manifest, and is sufficiently * 321] expressed, to satisfy the requirements of the statute, in the instrument of guaranty, and the agreement on which it was indorsed and to which it referred. The remarks of BRONSON, J., in Staats v. Howlett (1 Denio 559), may well be applied to it, that "if this contract should be held void (on the ground that the consideration was not expressed), it would overthrow most of the guarantees and letters of credit which now enter so largely into the commercial world." There is a class of cases in the books, in respect to guarantees of payment indorsed or written on promissory notes, that has not escaped observation. In regard to these, there is much confusion, or, at least, was, until the decision in Brewster v. Silence (4 N. Y. 207). In the earlier cases, where a person signed a guarantee of payment indorsed on a promissory note, and who was privy to the original consideration of the note, and signed the indorsement contemporaneously with the making of the note, it was held, that he might be treated as a joint and several promissor with the party signing on the face of the note. (Hough v. Gray, 19 Wend. 202; Lequeer v. Prosser, 1 Hill 256.) In other cases, he was held to be an indorser. (Prosser v. Lequeer, 4 Hill 422; Leggett v. Raymond, 6 Hill 639.) It is worthy of remark, that in the case of Lequeer v. Prosser, the words, " for value received," were in the written guarantee, which, it is said, in Brewster v. Silence, would have sufficed as an expression of the consideration. In Manrow v. Durham (3 Hill 584), it was Opinion of the Court, per WRIGHT, J. proved by parol, that C. P. Durham purchased a horse of the plaintiff, and in part payment therefor, transferred t him a note of Ephraim Durham, of which he was the payee, on the back of which was indorsed the following guarantee, upon which the suit was brought: "We guaranty the payment of the within note." This was signed by C. P. Durham and one Moulthrop, who was proved, by parol, to have signed it at C. P. Durham's request, and as his surety. The supreme court held, that the writing was, in substance and legal effect, a promissory note, and, as such, it imported primâ facie to be founded upon a valuable consideration. The judgment of the [ * 322 supreme court was affirmed in this court, not on the ground that the instrument amounted to a promissory note or general indorsement, but on the ground that the undertaking was for the payment of the debt of one of the guarantors, and, therefore, original, and not reached by the statute. This case follows that of Brown v. Curtis (2 N. Y. 225), where it was held, that where the payee and holder of a promissory note transferred it to his creditor, to pay his own debt, and, at the same time, executed on the back of the note transferred a guarantee of the payment thereof, that such guarantee was not within the statute of frauds, and was valid, although it expressed no consideration; it being, though in form, a promise to answer for the debt of another, in substance, an engagement to pay the guarantor's own debt, in a particular way, and would be good without any writing. It may be observed, that the statute of frauds was not made a point in any of the case cited above, as decided in our own state, in which the guarantor was held to be a joint maker of the note guarantied, or an indorser, or the maker of a new note, until the case of Manrow v. Durham. In that case (the guarantee having been executed after the making of the note), three of the judges in this court were of the opinion that it was a collateral undertaking, Opinion of the Court, per WRIGHT, J. and no consideration being expressed, it was void by the statute of frauds. The case of Hall v. Farmer (5 Denio 484), was an action brought on a guarantee of payment, indorsed on a promis sory note. It was shown by parol, that the makers of the note, and the plaintiff, adjusted and settled their respective demands against each other, at the date of the note, finding due to the plaintiff the amount mentioned in it; the defendants were not present at the settlement. After the balance was ascertained, the note and guarantee were made; the defendants signed the latter in this form:"We, the undersigned, guaranty the payment of the within." It was claimed, in the supreme court, that the defendants were liable as makers of a promissory note, but the court held, that it was not, itself, a promissory note, * 323 ] but was a special promise to answer for the *debt or default of another, within the language and spirit of the statute of frauds, and, to be valid, must express the consideration on which it was made. This case was affirmed in this court, by a vote of four to three; one of the majority placing his concurrence on the ground that the contract of the defendants was upheld by no consideration in fact; he thought that a collateral promise, by a third party, to pay a pre-existing debt, for which he was in no wise liable, and where no new credit was given, could not be sustained, without some other consideration, which did not appear in the case. The decision settled no general principle; that the defendants were neither makers nor indorsers of a promissory note, but that their contract was one of guaranty, had been settled before. (Spies v. Gilmore, 1 N. Y. 321; Brown v. Curtis, 2 Ibid. 225.) The case of Brewster v. Silence (8 N. Y. 207), was an action on a guarantee, written beneath a promissory note, in this form: "I hereby guarantee the payment of the above note. (Signed) F. Silence." It was shown by parol, that on the 18th of April 1848, George Silence pur Opinion of the Court, per WRIGHT, J. chased a pair of horses of one Thompson, and that a condition of the sale, was, that the note to be given for them should be guarantied by the defendant, and the sale was not to be consummated, until after the execution of the guarantee. George Silence made and executed a note for $140, payable to the order of Thompson, at the Rochester City Bank, by the 1st of November following, and the defendant signed the guarantee at the same time. After the execution of the note and guarantee, the horses were delivered by Thompson to George Silence, who, at the same time, delivered the note and guarantee to Thompson. The court held, that a guarantee, written beneath the promissory note of a third person, and delivered with it, upon a previous agreement, is not a part of the note, and the guarantor is not a joint maker with the maker of the note; but it is a distinct contract to answer for the the debt of a third person, and must be in writing and express the consideration upon which it made, or it will be void; that such consideration cannot be supplied by parol proof; accordingly, it was held, that, the action could not be sustained *upon the guar- [ * 324 antee. It is not perceived, however, that the court decided anything new, except, possibly, overthrowing a class of cases, holding that a guarantee made at the same time with the principal contract, and constituting an essential ground of the credit given to the principal debtor, requires no other consideration than that which upholds the principal contract, and that the consideration need not be expressed in the written guarantee, but may be shown by parol evidence. It had been held before, that similar contracts of guaranty could not be construed to mean something else than what the language of the ininstrument plainly imports, with the view of giving effect to the supposed intention of the parties, as ascertained from extrinsic evidence; that, in form, it was a promise to answer for the debt or default of another, and is to |