Moses v. Norton

Appleton, J. — From the facts as agreed upon by the parties, there can be no question but that the plaintiffs might have successfully maintained an action against Mrs. Norton, the mother of the defendants, for the rent of the premises belonging to them, during her occupation of the same. She had entered their house under an agreed rent of sixty dollars a year and was occupying the same at the time of the promises of the defendants, which are relied upon to sustain this suit. That lease was then in full force, and there is no evidence whatever of its termination. Mrs. Norton was, in no way relieved from her liability to the plaintiffs, and by continuing to occupy it she still remained liable. It is difficult to perceive what defence she could have made to any suit brought to recover the rent due. Mrs. Norton must be regarded as the principal debtor and the liability of the defendants as collateral thereto, and consequently as within the statute of frauds, R. S. c. 136, <§> 1, which requires the promise “ to answer for the debt, default or misdoings of another to be in writing. In Blake v. Parlin, 22 Maine, 397, the son of the defendant leased the house of the plaintiff, and it appeared that while he was moving in the same, the plaintiff called on her and told her they should not go in unless she would be accountable for the rent, and that she verbally promised the same should be paid. But this being a parol promise to pay the debt of another, and not in writing, was held void under the statute. In Thomas v. Williams, 10 B. & C. 664, Lord Tenterden, C. J., held that a promise to pay the accruing [115] rent of the tenant was “ nothing more than a promise to pay-money that would become due from a third person,” and was “ within the words of the statute, and the mischief intended to be remedied thereby.” The test in all cases under the statute is, whether the party promising is an original debtor or not. The defendants can only be regarded as guarantors. Tileston v. Nettleton, 6 Pick. 509; Tomlinson v. Gill, 6 Ad. & El. 564; Barber v. Fox, 1 Stark. 270. Plaintiff nonsuit. Shepley, C. J., Tenney, Rice and Cutting, J. J., concurred.