Riegelman v. Focht

Opinion, Mr. Justice Green: In any aspect of the testimony in this case, the promise upon which the suit was brought was a verbal promise to pay the debt of another, and therefore void under the statute of frauds. The original letting of the premises in question was admittedly made by the plaintiff to James S. Focht. Daniel Focht, the defendant, was in no sense a party to that contract. The letting was for one year, and under it James S. Focht moved into the house, and continued to live there until the end of the term. JFIe paid part of the rent, $75, and it is not claimed by the plaintiff, nor is it the fact, that the plaintiff at any time released him from his obligation to pay the remainder of the rent. On the contrary, the plaintiff testified that “Jim,” his tenant, still owed him the $125 balance of the rent at the trial. He was asked: “ Q. Then James S. Focht paid you $75, and still owes you $125 ? A. Yes, sir, Jim; but he did not pay it on the bargain, and he owes me $125 yet. Q. Jim Focht paid you $75, and owes you $125, is that so or not ? A. I rented it to him for $200. Now, it is easy to know how it is.” The plaintiff’s own testimony as to the defendant’s promise was that he asked him, the plaintiff, to let Jim remain on the premises, and that he, the defendant, said he would pay the rent monthly or quarterly, as he desired. “ Q. Did you at that time threaten to evict James Focht? A. I said if he did not pay his rent or give bail I would evict him. Q. What was Daniel Focht’s answer at that time ? A. Dan Focht said, then, I should leave him remain, and that he would pay the rent monthly or quarterly, as I desired. Q. What did he do then ? A. He remained there till the end of the year. Q. What did you say to Daniel Focht ? A. Then I left him live there. Upon the old man’s promise I left him live there. I cannot answer what answer I gave. It is so long ago I have forgotten it.” Thus it will be seen that the whole of the plaintiff’s case, according to his own testimony, [388] was that he would forbear an eviction of the tenant; and let him continue to live on the premises to the end of the term, upon the defendent’s promise to pay the rent. It is really too plain for argument that this is not the creation uf a new and independent debt of the promisor alone, but a mere promise to pay the debt of the tenant, who was to continue to occupy the premises until the end of the term; and this is precisely what he did. No change took place in his relation to the plaintiff as his tenant. He still continued liable for the accruing rent, and the plaintiff so testified. Of course, no relation of tenancy between the plaintiff and the defendant ever arose, nor was there the slightest pretence that it did, or that anything was said between them on that subject. The defendant received no consideration of any kind for his promise, except such as would arise from the fact that his son was permitted to remain on the premises. There is no testimony in the case which, in any degree, improves that of the plaintiff himself. The debt of the tenant remained; there was no ex-tinguishment of it, and no substitution of any other debt in its place; there was nothing but the collateral, verbal promise of the defendant to pay it; and, under all the authorities, such a promise is within the operation of the statute of frauds and perjuries. Said Mr. Justice Strong in Maule v. Bucknell, 50 Pa. 93: .‘.‘In note (T) to Forth v. Stanton, 1 Wms.’ Saunders, 211b, it is said: ‘ The question whether each particular case comes within the clause of the statute or not depends, not on the consideration for the promise, but on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defendant or his property, except such as arises from his express promise.’ The doctrine of this note is supported by very many cases, and it is in harmony with the words of the statute.” In Nugent v. Wolfe, 111 Pa. 471, our Brother Ster-RETT said: “ As a general rule, when the leading object of the promise or agreement is to become guarantor or surety to the promisee, for a debt for which a third party is and continues to be primarily liable, the agreement, whether made before, or after, or at the time with the promise of the principal, is within the •statute, and not binding unless evidenced by writing.” In the note to Birkmyr v Darnell, 1 Sm. L. C., 8th ed., 459, it is [389] said: “ It is universally conceded that forbearance to proceed against the estate or person of the debtor, though a good consideration, is insufficient to avoid the statute; ” citing many cases in support of the principle. The doctrine is well staled in 9 Amer. & Eng. Encyc. of Law, 73, as follows: “ If the evidence shows that the party who receives and profits by the consideration is liable and may be sued for the debt in assumpsit, or that credit was given primarily to him in any form, the case will fall within the statute, and no recovery can be had on a collateral promise, unless reduced to writing, or based upon a distinct and independent consideration moving to the promisor!” It is unnecessary to multiply authorities upon these familiar principles, which are directly applicable to the facts of this case. The case of Merriman v. McManus, 102 Pa. 102, which is cited by the appellee, is not at all in point, as its facts are entirely different. There the work under the original contract had ceased because of the insolvency of the party who was liable originally. But it was essential that the work should proceed, and the parties interested in the completion of the work made a new and independent agreement with the plaintiff to go on and finish the work, and they would pay him for it. The work was thereafter done, and, of course, the defendants were held bound to pay for the work subsequently done under their contract to pay for it. We are of opinion that the learned court below was in error in the portion of the charge embraced in the third assignment of error. It was, in effect, a. direction that, if the defendant’s promise to pay was based upon the plaintiff’s agreement not to eject the tenant, the plaintiff might recover. We do not so understand the law. The assignments of error are all sustained. Judgment reversed.