Mason v. . Wilson

Ashe, J. The question of jurisdiction raised by the •defendant's exception cannot be sustained,’for the action is slot upon the lost note (see Fisher v. Webb, ante,) but is in nature-of assumpsit for money had -and received tothe use •of the plaintiff. T-he defendant contends that the action cannot be sustained, for the reason that the promise of the defendant is to pay the debt'of 'Green and is within the ■statute of frauds. In construing this statute, (our act of 1819), it may be ‘laid down as a general rule, “that a promise to answer for the debt, default or miscarriage of another for which that •other remains liable, must be in writing to satisfythe statute •of frauds-; contra, when-the other does not remain liable.” I Smith L. C., 371. But there are numerous exceptions to •the rule. Chief Justice Kent, in the case of Leonard v. Vredenburgh, 8 Johns. Rep, 29, went very fully and elaborately into the discussion of the many diversified and vexed •questions arising in the construction of this statute, and he divided the subject into three classes-: 1. Cases in which the promise is collateral to the principal contract, but is made at the same time and becomes an •essential ground of credit given to the principal or direct •creditor. 2. Cases -in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement io-it, though-the subsisting liability is therground of *54 the promise without any distinct and unconnected inducement. 3. A third class of cases is where the promise to pay the-debt of another arises ou-t of some new and original consideration of. benefit or harms moving between the-original*, contracting parties. He says the two-first ©lasses are within, the statute and the-last is not, and the reason given why this last class does not come within the statute is because the promise is made upon a new and independent consideration,, and it matters not whether the original debt continues to subsist or not. Im 1 Smith L. C., 885, as coming under the íast class,, a promise-to pay an antecedent debt in consideration of property placed in the hands- of the promisor by the debtor, or of some new engagements or contracts entered into by the-ereditor, has been held not to require a writing l© give ife validity. Olmstead v. Gouls, 18 Johns., 12. And in Wait v. Wait, 28 Vermont, 350, it is decided that a parol promise to. pay the debt of another in consideration of property placed^ fey the debtor in the promisor’s hands is- not within the-statute of frauds. It is an original- promise and binding? ■upon the promisor,, and in this respect it is immaterial whether the liability of the original debtor is continued oc-discharged. The same doctrine has feéen recognized and adopted by several decisions in-this court,, upon the ground that the-promise made and- the liability incurred are to be regarded as an original and independent promise founded upon a new consideration and binding upon the promisor, bat i.t applies only where the- property has been converted into-money, and the mosey received*. Draughan v. Bunting, 9 Ired., 10; Hall v. Robinson, 8 Ired., 56; Hicks v. Critcher, Phil., 353; Threadgill v. McLendon, 76 N. C., 24, S tanley v. Hendricks, 13 Ired., 86. In the last cited case, Chief Justice PeabsoN.says:. “The principle is this:, when,,in considera *55 tion of the promise to pay the debt '-of -another, the defendant receives property and realizes'the proceeds, the promise is not within the mischief provided against; -and the plaintiff may recover on the promise or in an action for money had and received. For although the promise is in words to. pay the debt of another-and the performance of it discharges that debt, still the consideration was not for the benefit or ease of the original debtor, but for a purpose entirely collateral, so as to create an original and distinct cause of action.” The case of Threadgill v. McLendon seems to be directly in point. There, the plaintiff furnished supplies to a cropper of the defendant upon a promise by the defendant to pay for the same, and afterwards took into his possession cotton belonging to the cropper and sufficient to pay the plaintiff’s account, and thereafter promised to pay the same; and if was held that the promise was not within the statute, and that defendant was liable, for the reason that the promise was not made by defendant as surety for his cropper but for himself, because the fund out of which the debt was to-be paid was in his hands. It was insisted in this case by defendant’s counsel, that the case did not come within the principal of Draughan v. Bunting, and other-cases, 'because the cotton had not been sold; but the objection was met by the answer that cotton was a cash article and might be readily- converted into money. Upon these authorities we hold that the promise of the defendant to-pay the debt of Green -to the plaintiff 'was not within the act of 1819, and that there is no error upon that point. The judgment of the superior court is therefore affirmed. ' - No error. . Affirmed.