Myers v. Morse

Spencer, J. delivered the opinion of the court. The first objection taken to the plea is, that it amounts to the general issue, and is therefore had. It may well he doubted whether the plaintiffs can avail themselves of this objection under a general demurrer. (1 Chitty’s Pl. 498. and the cases there cited.) But upon principle, the plea is well pleaded, if the promise laid in the second count, is not a valid promise, unless it be in writing. The rule is this, in an action of assumpsit, matter which shows that no such contract was made, cannot be pleaded; but matter which admits the contractas laid,,but shows that it was not binding in point of [427] law, may be pleaded, because, it being matter of law, it is proper to show itto the court. (1 Chitty's Pl. 497. 499. Bacon's Abr. Plead. G. 3 Gilb. C. P. 62. 66) This opens to the inquiry, whether the promise set forth in the second count is within the statute of frauds and perjuries or not. I think this a case not affected by that statute, for according to the principle laid down in the case of Leonard v. Vredenburgh, (8 Johns. Rep. 39.) where the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties, it is not a case within the statute. In the case of Skelton v. Brewster, (8 Johns. Rep. 376.) the same principle was again adopted by the court. The plea, then, is undoubtedly bad ; but though bad, it authorizes the defendant to go back and examine the declaration, to see if that be good. Although the defendant’s promise is not a collateral, but an original one, there must be a consideration for that promise ; this is stated to be the defendant’s liability, as an endorser on a promissory note, given by Horace Morse, payable to the defendant, and endorsed by him, which note came to the plaintiffs by endorsement; and on their promising the defendant not to require of him the payment of that note, the defendant, in consideration of the premises, promised to indemnify the plaintiffs from one third part bf all the losses, in consequence of endorsing, or having endorsed, all notes of Horace Morse ; and the gravamen of their case is, that they paid 600 dollars, in consequence of endorsing Morse's notes. The defendant was only contingently liable to pay the note he had endorsed for Morse, that is, on the failure of the maker to do so. It ought to have been stated that Morse was insolvent, and unable to pay that note, or else there is no consideration for the defendant’s promise, either of benefit to him, or loss to the plaintiffs. The allegation that the plaintiffs have sustained a loss by endorsing Morse's notes, is liable to the same objection. The promise, if valid and binding, must be construed to mean, to pay to the plaintiffs one-third of such sum as they should lose by endorsing Morse's notes; [428] that is, one-third of what they should be obliged to pay, and which could not he recovered of Morse, owing to insolvency, not one-third of what they should pay, and which might be recovered of him. There is no allegation that Morse was unable to refund to the plaintiffs any money which they may have paid as endorsers of his paper. I consider these objections as insurmountable, and that, therefore, the defendant' must have judgment, with leave to the plaintiffs to amend on payment of costs. Judgment for the defendant.