Stern v. Drinker

Ingraham, First J. The plaintiff’s complaint alleged that he recovered a judgment against one Nusbaun for $45 ; that he issued an execution thereon, and levied on sufficient property of the defendant to satisfy the judgment; that the defendant agreed with him, that if the plaintiff would release and abandon the levy, and deliver the property to the debtor, he, the defendant, would pay the plaintiff the amount of the [403] said judgment; that the plaintiff did abandon such levy, and now claims to recover from the defendant the amount of the judgment. To this complaint the defendant demurred generally, and the court below rendered judgment for the defendant. 1. The demurrer was sufficient, without specifying the grounds of demurrer. The section of the Code which requires a demurrer to be special, does not apply to justices’ courts, and the same causes which are grounds of demurrer in courts of record, do not warrant a demurrer in these courts. The justice erred, however, in giving final judgment for the defendant on the demurrer. By subdivision Y of sec. 64, it is provided, “If the court decide the objection taken by demurrer well founded, the court shall order the pleading to be amended; and if the party refuse to amend, the defective pleading shall be disregarded,” This objection, however, is not stated as a ground of appeal, and we ought not to reverse on that error. 2. The question upon the merits is, whether the plaintiff’s complaint contains a cause of action—and this involves the decision of the question, whether a parol promise made to a judgment creditor, to pay the amount of the judgment, upon condition that he will release to the debtor his property levied upon under an execution issued on the judgment, is within the statute of frauds. There can be no doubt that there was a sufficient consideration to sustain the promise. That consideration was releasing a valid levy made under one execution on the judgment, sufficient to satisfy it. Either benefit to the promissor or harm to the promissee, is a sufficient consideration, and the release of sufficient property to pay the debt would be an injury to the plaintiff. (10 Wend. 461; 20 Ib. 184.) The justice, in deciding for the defendant, must have considered the promise void, because the same was not in writing. That it was to pay the debt of another must be conceded. It was to pay the judgment against Busbaun, which the plaintiff then [404] held, and the promise to pay it by the defendant did not relieve Nusbaun from liability. We have been referred to two cases which the appellant’s counsel insist are in point and must decide the case in his favor. Numerous other cases may be found to the contrary. In Sampson v. Patton, (4 Johns. R. 222,) a promise in consideration of forbearance not to sue, was held to be void, because not in writing. In Jackson v. Raynor, (12 Johns. R. 291,) the same point was in like manner decided. (So, also, 2 St. 873; 2 Wend. 94; 20 Ib. 204.) There is another class of cases in which the courts have held the promise not to be within the statute. I refer to those where a third person, on good consideration, promised the creditors to pay the debt of another, having in his possession property of the debtor, out of which to make the payment. (Williams v. Loper, 3 Bun. 1,886 ; 4 Cow. 435; 2 Denio, 45; 10 J. R. 412; Lippincott v. Ashfield, 4 Sandf. S. C. R. 615.) In 2d Denio, 45, Judge Jewett says, “It may be laid down as a rule, admitting of no exception, that when a promise is made to a creditor, by a third person, to answer for the debt of the debtor, another person, it cannot be upheld, although founded upon a new consideration from the creditors, unless the agreement be in writing; and that no agreement, made between the debtor and a third person, by which the latter promises a sufficient consideration to pay a debt owing by the former to his creditor, is within the statute, whether in writing or by parol.” This refers to a third class of cases, where a third person receives property from the debtor, and promises the debtor to pay the proceeds thereof to the creditor, for the debtor. The last two classes are similar, 'and rest on the same basis, viz., the possession of property of the debtor, which the promissor undertakes to apply to the payment of the debtor’s debt. This was the ground of the decision in 4 Cow. 435, and the same is referred to in the decision in Watson v. Randall, 20 Wend. 204. In referring to that case, the judge [405] says, “ certain cases there referred to may have been regarded as original promises, the defendants in each case having received property from the debtor, as inducement to the undertaking.” The cases relied upon by the appellant are, Slingerland v. Mone, 7 J. R. 463; Mercein v. Mark, 10 Wend. 461; Smith v. Weed, 20 Id. 184. In Slingerland v. Mone, the goods levied on were delivered to the defendant, who undertook, in writing, to return them, or pay $450. This was held to be an original undertaking. It was not the agreement to pay the debt of the debtor, but to return the goods received or pay the value. In Mercein v. Mark, the promise was to endorse a note for the debtor; and although, in that case, the judge stated the proposition, that when the promise of one person to pay the debt of another was founded upon the consideration of surrendering up property levied on by an execution, the promise was an original undertaking—it was not necessary to the decision of that case. In Smith v. Weed it does not appear whether the promise was.in writing or not; and the only question made there was as to the validity of the consideration. I concur in the views of Judge Sill on this question, as stated in Kingsley v. Balcom, 4 Barb. S. C. R. p. 131: “ In the course of this examination I have seen it repeatedly laid down as the rule, that when the promise arises out of some new and original consideration of benefit or harm moving between the contracting parties, the promise is not within the statute. “ If this were so, the statute would be nullified; for a promise would be always binding, where there is a good consideration for it. “ The true rule is, that the new consideration spoken of must be such as to shift the actual indebtedness to the new promissor, so that, as between him and the original debtor, he must be bound to pay the debt as his own.” In the present case, the original debt remained; the property was given up to the debtor, and not to the defendant; the defendant received no property, and owed no debt which [406] he promised to pay to the plaintiff; but simply in consideration of the plaintiff’s relinquishing to the debtor the debtor’s property, he promised to pay the debtor’s debt. I cannot imagine a promise to pay the debt of another, if the one under consideration is not one. Assuming the promise to have been by parol, as conceded on the argument, I think the judgment on the merits was correct; but as the court was in error in giving judgment on the demurrer, instead of ordering the pleading to be amended, I concur in the suggestion of Judge Woodruff, as to the proper order to be made on this appeal.