Russell v. Barry

Ames, J. It appears that McDonald had bound himself by a contract to build a house for the defendant, but was not able upon his own credit to obtain all the lffmber necessary for that purpose. The defendant therefore, in order to remove that difficulty, by his written order requested the plaintiffs to deliver lumber to McDonald, for the purposes of his contract, to an amount not exceeding five hundred dollars : and promised to be responsible for the payment therefor “ when the house is completed.” Upon receiving this written order, the plaintiffs delivered the lumber accordingly, and it has been made use of in building the defendant’s house. The reference to the completion of the house has no effect except to fix the time when the order should become payable. The house having been substantially finished, a right of action thereupon accrued to the plaintiffs. It is [303] not made a condition of the order that the house was to be completed by McDonald, and in this respect the case closely resembles Cook v. Wolfendale, 105 Mass. 401. Upon the completion of the house by any agency, the order became payable. W ith regard to the grounds of defence suggested by the defendant’s counsel in his opening to the jury, it is now objected that they are in the nature of a confession and avoidance, not indicated by the terms of the answer, and for that reason not open to the defendant. If this objection had been taken at the trial in the Superior Court, the defendant would have had an opportunity to move for leave to amend his answer, and we cannot know that that court, in the exercise of its discretion, might not have allowed the motion. As the objection does not appear to have been taken at that stage of the case, we think it comes too late, and that the matter is not a mere question of pleading. The alleged oral agreement, contemporaneous with the signature of the order, and making it conditional on the completion of the house by the plaintiffs, if McDonald should fail to complete it himself, was not admissible, under the general rule that a written contract is not to be modified, or varied by paroi evidence. And as to the subsequent promise to the effect that the plaintiffs would see McDonald immediately, “ and get him to finish the house, and, if he would not, that they would complete it themselves,” it is manifest that if that were the whole of their undertaking, it would be a mere promise to be responsible for the debt or default of another, and under the statute of frauds would be of no binding force. Such a promise would not support an action by the defendant against them, nor would it be of any avail to him as a defence in their action against him. King v. Welcome, 5 Gray, 41. But the defendant’s offer of proof goes much farther than this, and suggests an additional element in the agreement which gives it a materially different aspect. He avers that before the house was finished, and of course before anything had become due to the plaintiffs upon the order, they being in pressing and immediate want of money applied to him, not as creditors but as borrowers, for a loan of three hundred and fifty dollars , and that one of the conditions of this loan was that if the house were not finished either by McDonald or themselves within thirty days, they would give back to him the [304] written order upon which this suit is brought. The loan of the money was a sufficient consideration in law for such a promise, It does not appear from the report that it had at that time become certain that McDonald would not be able to finish the building himself, and the terms of the alleged new agreement seem to indicate an expectation on the plaintiffs’ part that he would complete his contract. If for the sake of obtaining the loan at a time of urgent necessity, they were willing to agree to release the defendant absolutely from his liability, (which would be the effect of returning the order to him,) and to take upon themselves the chance that McDonald, by finishing the building, should put himself in a position to pay them the amount due upon the order, we do not see why the defendant may not rely upon this agreement as a defence to the suit. A promise to return the order to the defendant on certain conditions, and on sufficient consideration, is not a mere collateral undertaking, but may fairly operate as a release or defeasance, if those conditions should be fulfilled. Foster v. Purdy, 5 Met. 442. To this extent therefore we consider the evidence offered by the defendant to have been competent, and capable of affecting the rights of the parties. As it was otherwise ruled in the court below, the verdict must be set aside, and a New trial- ordered.