Richardson v. Robbins

Colt, J. Upon the facts stated in the second count of the plaintiff’s declaration, the defendants’ promise is within the statute of frauds and must be in writing. The plaintiff held the overdue notes of Evans secured by a mortgage of personal property. The condition of the mortgage contained a clause forbidding a sale of the property by the mortgagor without the consent of the mortgagee. The defendants requested the plaintiff to consent to a sale from Evans to Snow, subject to the mortgage; the latter agreeing to pay the mortgage to the plaintiff, and the defendants agreeing, on their part, to pay the plaintiff such portion of the mortgage and notes as Snow [107] should fail to pay. It is stated that this promise was made by the defendants in order to secure the payment of a debt due from Evans to them, which Snow then assumed and agreed to pay. But this does not make it anything more than a promise to pay the debt of another. The plaintiff released no part of the original debt of Evans to him, nor did he give up any lien, or release any security held by him. He only consented that the mortgagor might sell whatever right he had as mortgagor to Snow; that is, might transfer to Snow his right to redeem. This right the mortgagor always had; and the only effect of a sale without the plaintiff’s consent would be to give him, under the terms of the condition in the mortgage, a right to foreclose, as for a breach of the condition. But, when the alleged promise of the defendants was made, the condition of the mortgage had already been broken by the non-payment of the mortgage notes at maturity; so that the plaintiff neither parted with, or was delayed in the exercise of, any right he had to the mortgaged property, nor was any benefit or advantage released to the defendants. The transaction, in its essential character, amounted at most only to a guaranty of Snow’s agreement to pay the debt of Evans to the plaintiff, the consideration of the guaranty being an agreement on the part of Snow that he would also pay a debt of Evans to the defendants. There was no purchase or acquisition by the defendants from the plaintiff, by reason of the promise, of some property or benefit to themselves, such as would show the promise to be a new promise by the defendants to pay a debt of their own, fairly contracted in such purchase or acquisition. Ames v. Foster, 106 Mass. 400. Brightman v. Hicks, 108 Mass. 246. Gill v. Herrick, 111 Mass. 501. Furbish v Goodnow, 98 Mass. 296. The evidence offered to prove the contents of a lost written instrument was properly rejected. The previous talk of the parties as to what they proposed to agree to in the writing to bf drawn up is not evidence of the contents of the paper. Exceptions overruled.