Opinion
Submitted October 30, 1936 —
Decided January 22, 1937.
1. A contract of guaranty under the statute of frauds must be in writing signed by the party to be charged or by some one duly authorized.
2. Where a contract of guaranty is signed by an attorney-at-law, parol evidence is not admissible to charge another as principal for such action would open the door to the mischief the statute was designed to suppress.
On appeal.
For the defendant-appellant, Martin Klughaupt and Harry H. Weinberger.
For the plaintiff-respondent, Aaron Heller.
The plaintiff recovered a judgment against the defendant, Anne B. Blauvelt. The action was brought upon a guarantee of a mortgage assigned by Mrs. Blauvelt to the plaintiff. The instrument, after recitals, concludes: "I do hereby guarantee the said mortgage in principal and interest to the said Marianna Zanetti at maturity. (Signed) Herman C. Rust, Attorney at Law of New Jersey."
Parol evidence was introduced tending to show that Herman C. Rust was agent for Mrs. Blauvelt, and that she was thereby obligated under his guaranty. The statute of frauds (2 Comp. Stat., p. 2612) provides: "That no action shall be brought * * * (2) to charge the defendant, upon any special promise, to answer for the debt, default or miscarriage of another person * * * unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized."
It is to be noted that the guarantee was not signed by Mrs. Blauvelt or in her name. There was no writing charging Mrs. Blauvelt with the obligation to pay the mortgage assigned by her. The writing, at best, obligated Rust but he was not a party to the action. To supplement this memorandum, which the statute says must be in writing, by parol evidence, would open the door to the very mischief the statute was designed to suppress. Randolph v. General Investors Co., 97 N.J. Eq. 493 . Therefore, the cause of action was not proved within the requirements of the statute, and the motion for the nonsuit should have been granted. Rose v. Johnson, 2 N.J.L. 5.
The judgment is reversed.
For affirmance — None.
For reversal — THE CHANCELLOR, CHIEF JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, COLE, JJ. 15.