Steadman vs. Guthrie et al. fiailed and closed his banking house on the 5th of October, 1857. Held, (upon demurrer to the petition,) That the petition is fatally defective for want of special averment of reasonable notice to the guarantors of the plaintiff's acceptance of the offer, or of his intention to act upon it. W. C. WOOD, for appellant, cited 4 Bibb, 454; 7 Blackford, 526; Bouvier, Inst., 2 vol., 56; 11 Shep., 73; Pike, 76; 20 Wendell, 82; 14 B. Mon., 185; Holbart, 31; Cro. and Jac., 287, 432, 685; 7 Cranch, 523; 14 Conn. 490; 5 Tenn., 596, 606; 4 Dog., 444; 24 Wend., 35; 3 Sneed, Tenn., 89; Brown, 390; 5 Mason & Welby, 500; 7 Cranch, 69; 12 East, 10, 227; Adol. & Ellis, 309; Kent, 163; 12 Wheat., 515; 1 Ld. Raymond, 357; 1 Barn. & Adol., 603; 2 Howard, 426; 10 Moore, 395; Parsons on Contracts, 365, and notes; 15 N. Hamp., 127; 9 East, 248; 1 Barr, 394; 1 Smith's Leading Cases, 6th Amer. Ed., 373; 1 Strange, 592; 2 Harris, 469; 4 Barr, 305; 12 Mass., 154; 7 N. Hamp., 549; 1 Strange, 88; 9 Barb., 202; 5 Pick., 380; 14 Com., 490; 5 Conn., 596; 7 lb.. 532; 2 Sacket, 457; 5 Tenn., 606; 1 Chitty's Plead., 320; 24 Wend., 35. DEMBITZ & BIJUR, on same side, cited 10 Mass., 230; 2 Amer. Lead. Cases, 33; 2 Chitty's Plead., 316, 318; 2 Salk., 457; Holbart, 51; Cro. Jac., 432; 2 Hen. Black., 613; 2 Smith's L. C., 21; 1 Met. Ky., 410; 5 B. Mon., 403. O. F. STIRMAN, on same side, cited Parsons on Contracts, 367, 69 and notes; 1 Ld. Raymond, 357; 1 Barnwell & Adol., 603; 10 Moore, 395; 3 Bing, 107; 2 Howard, 426; 12 Wharton, 515; 12 East, 227; Broom, page 311, 313, 321, 388, 390 and 91, and 99; 5th Mason & Welby, 501; Kent's Com., 163-4 and 5; 2 Campbell, 413; 7 Crunch, 69; 10th Adol. & Ellis, 309; 5th Pick.. Hamp., 549; 9 Barb.. 380; 1 Strange, 88; 12 Mass., 154; 7 N. 202; 3 Watts, 213; 5 Rawle, 69; 4 Barr, 305; 5 Harris, 469; Hobart, 31; Cro. Jac., 432; Smith vs. Gaffe, 2 Ld. Raymond; Cro. Jac., 287; Cro. Jac., 685; Cro. Jac., 34; 14 Conn.. Rp., 479; 16 Viner's Abridgement Title Notice, page 5, pl 10; 5 Tenn. Rep., 606; Lawson's Pl., 221; 1 Chitty, P., 320; 2 Wm. Stunders, 62, n.; Comyn's Dig. 575, title pleading, 2 Salkeld, 457; 5 Conn., Rep., 596; 4th Day. 444; 7 Conn. Rep,, 523; 24 Wendell, 35; 2 A. K. Marshall, 255, 733; 1 Barr, 394; 1 Strange, 692; 1 Denio, 404; 15 N. Hamp., 127; 10th Exchequer, 323; 9th East, 243; 1 Steadman vs. Guthrie et al. Smith's Leading Cases, 5th Amer. Ed., 373; 25 Ala. Rep., 704; 15 Conn. Rep, 457; 5 Peters, 624; Adams vs. Johnson, 12th Peters Douglas vs. Reynolds; Lee vs. Dick; Bright vs. McKnight, 1 Sneed, 158; 2 Swan Rep., 117; 3 Sneed, 89; 29 Ala., 288; 34 N. Hamp, 534; Woostock Bank vs. Downer, 1 Williams' Rep., Vermont, 2d American Leading Cases. MORRIS, SPEED, and G. A. CALDWELL, for appellees. JUDGE PETERS DELIVERED THE OPINION OF THE COURT: The appellant brought this suit, alleging, in substance, that on the 1st of October, 1857, one W. E. Culver, a banker in Louisville, owed the plaintiff $1,430 53, and to other persons large sums, payable on demand, on account of money deposited with him; that a panic prevailed, and the confidence of the public in the ability of Culver, and other private bankers, to meet the demands of their depositors, had been greatly impaired. That the defendants, knowing that many persons had large sums deposited with Culver, and fearing that they would demand the same, and knowing that he could not meet said demands if made, on sai 1st of October, or shortly after said. day, in consideration that the plaintiff and the other depositors would forbear to withdraw their deposits, and would permit Culver to keep and use the same, during the panic or until he could conveniently pay them, and to prevent "a run upon him" and of sustaining his credit, did on said day, sign and deliver to Culver, and publish in the newspapers, the following instru ment: "Louisville, Oct. 1, 1857. We the undersigned agree to guaranty the depositors of Wm E Culver in the payment in full of their demands against said Culver, on account of money deposited with him. We have entire confidence in his ability to meet all demands. JAMES THOMPSON, JAMES GUTHRIE, W. H. STOKES." Steadman vs. Guthrie et al. withdraw his deposits con That the plaintiff intended to from Culver on the said 1st day of October, and drew a check for that purpose; but said Culver showed him the said instrument, signed by said defendants; and that the plaintiff relying upon upon the guaranty therein tained, accepted the same and acted upon it, and suffered and permitted his said money to remain with said Culver on deposit, and did not insist on the payment of his said check, as he would have done but for said contract of the defendants. That said defendants delivered said guaranty to Culver for the benefit of all his depositors, and that Culver did exhibit and deliver the same to his depositors to obtain forbearance and indulgence, and to sustain his credit, of all which defendants had due notice. That Culver failed, and closed his banking house on the 5th of October, 1857, and that, though often requested he has failed to pay plaintiff said sum of $1,430 53, or any part thereof, of which defendants had due notice. Wherefore he prays judgment against them for said sum of money. The defendants demurred, upon the grounds 1st. That there was a defect of parties. 2d. That the petition did not state facts sufficient to constitute a cause of action. Upon the last ground the demurrer was sustained, and the petition dismissed. Afterwards, but during the same term, the plaintiff offered to file an amended petition, alleging, in substance, that the defendants, by delivering to Culver, and publishing in the newspapers, the aforesaid guaranty, waived notice of an acceptance of it by the depositors; which motion was overruled, and the plaintiff appealed. In support of the first ground of demurrer, it is contended that the guaranty was intended to be obligatory only in the event that it should be accepted by all the depositors, and that such is its effect, and therefore all the depositors are necessary parties to this suit. We are of a different opinion. The petition shows that the appellant alone is entitled to the money claimed by him; the other depositors have no interest in it, nor in this action. The fact, if conceded, that their acceptance of the guaranty was Steadman vs. Guthrie et al. necessary to render it obligatory in favor of appellant, did not make them necessary parties to his action. Upon the second ground of demurrer several questions are made by counsel. 1. It is contended for appellant that the writing was not a propoposal to guaranty those depositors who might give indulgence to Culver; but an absolute guaranty of payment of . all the deposits in Culver's hands, without any future action by the depositors. This position is inconsistent with the petition, which alleges that the writing was executed in consideration of forbearance to be thereafter given to Culver by his depositors. Moreover, it this position of counsel is correct, the petition is defective; because it shows that there was no consideration for such an agreement. True, as suggested by counsel, a writing imports, prima fucie, a valuable consideration; but the presumption of a sufficient consideration ceases to exist whenever the party relying upon the agreement undertakes, though unnecessarily, to show what was the consideration. (Jerome vs. Whitney, 7 John., 321; Bullitt vs. Ralston, 1 A. K. Mar., 331.) The appellant undertook to show the consideration of this agreement, and the facts stated by him shows that there was no consideration, unless it consisted in future forbearance by Culver's depositors, which clearly could form no consideration for an absolute agreement by the appellees to pay said depositors without reference to such forbearance. 2. On the other side it is contended that the guaranty is void under the Statute of Frauds, because it does not sufficiently express the agreement of the parties. We perceive no material defect in the writing, unless it consists in its failure to state the consideration which induced its execution. As a consideration is an essential part of every contract, and is not implied by the common law to support a contract not under seal, it was held by the English courts that writings. not under seal, to be valid under the Statute of Frauds, must contain a statement of the consideration of the contract; and the doctrine appears to have been recognized by this court; but it was never applicable to contracts under seal, because, Steadmans. Guthrie et al. as to them, the common law presumed a consideration. (Livingston vs. Tremper, 4 John., 416; Douglass vs. Howland, 24 Wend., 35; Edelin vs. Gough, 5 Gill., 103; Childs vs. Barnum, 11 Barb., 14.) But under the Kentucky Statute of 1812, (1 S. L., 343,) written contracts, whether sealed or not, imported a consideration, whilst under the acts of 1801, (Ib., 331,) and of 1815, (1 lb., 345.) the consideration of such writings could be impeached by plea. In view of these provisions, which were adopted in the Revised Statutes, and which apply to contracts embraced by the Statute of Frauds, and apparently for the purpose of placing it beyond doubt that such contracts should stand upon the same footing as other written contracts with respect to the consideration, it was enacted, concerning contracts required to be in writing, that "the consideration need not be expressed in the writing," it may be proved when necessary, or disproved, by parol or other evidence. (Revised Statutes, chap 22, sec. 1.) Neither the language, nor policy of the statute, furnishes any ground for a distinction between executed and executory considerations. It is as dangerous to admit parol evidence of the one as the other. It seems clear that this guaranty would not have been void under the statute of frauds, if it had been given in consideration of money paid to the guarantors by the depositors; and we perceive no ground for holding it void under that statute, if it is supported by any other sufficient consideration, whether executed or executory, though not stated in the writing. There would be no room for doubt upon this point, but for the fact that the statements of the petition, as to the consideration, show that the contract, instead of being an unconditional guaranty, as it on its face purports to be, was a conditional guaranty, depending for its validity upon the performance of certain acts by the depositors. As it is not claimed in the petition that the guarantors made any other contract than that contained in the writing, the question whether or not the contract is void under the statute of frauds may be answered by determining whether or not there is a variance between the contract contained in the writing and that set forth |