Stone v. Walker

Shaw, C. J. This is a joint action against Benjamin Walker and Comfort M. Walker, for professional services done by the plaintiffs as lawyers and copartners. Comfort M. Walker was defaulted, and Benjamin alone defends, and the question is whether a joint promise was proved, binding on both defendants. The grounds of Benjamin Walker’s defence are, 1st. That he never engaged the services of the plaintiffs at all; and 2d. That if he ever promised payment, it was a collateral undertaking to pay the debt of a third party, and was therefore void, not being in writing. The provision in the statute of frauds, Rev. Sts. c. 74, § 1, is, that no action shall be brought, to charge any person upon any special promise to answer for the debt, default or misdoings of another, unless the contract or some memorandum thereof be in writing, signed, &c. The court of common pleas instructed the jury that as the services to be rendered were for the benefit of Comfort—that is, to defend him against a criminal charge — they must find, in order to charge Benjamin Walker, that there was an original-express promise on his part to pay for the services, but that no precise form of words was necessary, in which to make such promise. The first object is to see if we understand this direction. The terms “ original ” and “ collateral,” as applied to undertakings in connection with the statute of frauds, though not found in the statute, are often used in applying it, and, being significant and intelligible, are convenient, as explained in Nelson v. Boynton, 3 Met. 400. If the promise is made by one in his own name to pay for goods or money delivered to, or services done for another, that is original; it is his own contract on good consideration, and is called original, and is binding on him without writing. But if the language is “ Let him have money or goods, or do service for him, and I will see you paid,” or “ I promise you that he will pay,” or “ If he do not pay, I will,” this is collateral. and, though made on good consideration, it is void by [616] the statute of frauds, before cited. These distinctions, though somewhat close, are plain and intelligible, and are fully set forth with the authorities in support of them, in the case just cited. With this view of the law, as expressed in the case cited and many others, the court are of opinion that the instruction given by the court to the jury was correct. As the service to be done was for Comfort alone, without something further than an ordinary retainer, he alone would be responsible. What therefore the court directed the jury was, that to charge Benjamin, they must be satisfied that Benjamin used some express words, by which he intended to engage and bind himself, as an original promisor, personally to pay for the services ; but if the language did not amount to such express personal undertaking to pay, but only that he would pay if Comfort did not, then the promise was void by the statute. The judge added that no precise form of words was necessary to show a personal promise on the part of Benjamin. The necessary implication was, that if Benjamin made any express personal promise to pay for the services, or expressly engaged the plaintiffs on his own account to perform the services, then it was an original promise, and he would be fiable ; otherwise,, he would not. It appears to us that this instruction was correct, and well adapted to the circumstances of the case. There was conflicting evidence of what took place at the only interview, at which the undertaking, whatever it was, was entered into. Probably no evidence made the case stronger for the plaintiffs, than the plaintiff Stone made it by his own testimony. He testified that the defendants came to see him to obtain his services in a case against Comfort, on a criminal charge, and the defendant Benjamin Walker, the uncle, said, “ We want you to go to South-bridge, and take care of this case; they are abusing Comfort, and I mean to stand by him; I mean to assist him.” The language itself was somewhat equivocal, purporting rather an intention to afford him the aid which he needed, to be nis bail, and stand his surety; though it might well be aided and explained by other evidence of what took place at the same time. And though that evidence was conflicting, it was [617] for the jury to weigh it, and determine which statement was best entitled to credit; and from all the facts which, on the evidence, they should find true, to decide whether the undertaking of the defendant Benjamin was personal and original to pay absolutely, or collateral and conditional, to pay if Comfort should not. It was rightly left to the jury under proper instructions, and therefore the verdict must stand. Exceptions overruled.