McKenzie v. Puget Sound National Bank

The opinion of the court was delivered by Scott, J. — The material allegations of the complaint in this case are, that on the 1st day of August, 1890, one Almond was indebted to the plaintiff in the sum of $1,425, and that said Almond, doing business under the name of Almond & Phillips Foundry Company, was indebted to [444] defendant in the sum of 114,000, and that said Almond was then the owner and in possession of a certain leasehold interest-in and to certain premises described, and was the owner of a certain foundry and machine shop plant of the value of thirty thousand dollars. The fifth and sixth paragraphs of the complaint are as follows: “5. That on the 21st day of August, 1890, the said Charles H. Almond, doing business as--aforesaid, conveyed to one Jacob Furth, the cashier and manager of the defendant, for the use and benefit of defendant, all of said plant, property, stock on hand, lease and accounts, and the defendant accepted the same and went into the possession thereof, through one G. L. Faust, who became and was appointed by defendants its general agent and manager in that behalf.” “6. That said defendant took and accepted said conveyance and assignment, and entered into the possession of said property, with a view and intention of paying off and discharging all the debts of said C. H. Almond, for the purpose of subserving and promoting its own pecuniary and business interests; and said defendant proposed, for the purpose aforesaid, to the plaintiff and others of the creditors of said C. H. Almond, that if said creditors would forbear the collection of their said debts against said C. H. Almond, and would accept payment thereof from defendant in deferred installments, that defendant would pay off and discharge said debts, and plaintiff and others of said creditors of said C. H. Almond accepted said proposition of defendant and forebore the collection of their said debts. ’ ’ The court sustained a demurrer to the complaint, and plaintiff appealed. We are of the opinion that the demurrer was well taken, on the ground that the promise alleged was void under the statute of frauds, it being conceded that it 'was not in writing. A logical construction of the complaint is that Almond transferred said property to the defendant in consequence of his indebtedness to the defendant, and that the [445] promise made by defendant to plaintiff was made after the execution of said conveyance .and delivery of the possession of the property, and was no part of the consideration for said transfer. The great weight of authority, certainly, is to the effect that the agreement of a creditor to forbear the enforcement of his debt is not a sufficient consideration to support an oral promise of a third person to pay that debt, and this is not disputed by the appellant, but he contends that the promise was made for the purpose of subserving and promoting respondent’s own pecuniary business interests. The most favorable construction that can be put upon the allegations of the complaint in this respect is, that defendant was of the opinion that the payment of Almond’s indebtedness to the plaintiff would subserve the defendant’s interests. That the defendant had an idea that such payment would benefit it in some way, although what it was founded upon is not apparent. Yet this was not the consideration for the promise, nor any part of it. The bank already had the property, and had made no promise to pay the plaintiff’s debt to obtain it. The obligation, if any, upon the part of the defendant to pay the plaintiff’s claim arose only upon its promise made to the plaintiff. The consideration for said promise was the forbearance of the plaintiff to proceed against Almond. The promise would have been sufficient to sustain the action, were it not for the statute. Any promise to pay, whether in writing or not, must be founded upon a consideration to be binding. A consideration to support a promise not in writing to pay the debt of another must be of a peculiar character, and must operate to the advantage of the promisor, and place him under a pecuniary obligation to the promisee independent of the original debt, which obligation is to be discharged by the payment of that debt. Ackley v. Parmenter, 98 N. Y. 425; Cross v. [446] Richardson; 30 Vt. 641. Almond’s debt to the plaintiff was not discharged by this promise, but remained in force. Affirmed. Stiles, Anders and Hoyt, JJ., concur.