Brown v. Barnes

ORMOND, J.' Conceding that the consideration in this case would have been sufficient to sustain an action upon the promise to pay the debt between the original parties to it, we will consider whether it would be sufficient, under the statute of frauds, as a promise to pay the debt of another, unless the promise was in writing. The counsel for the plaintiff in error insists, that this case is not within the statute, because the promise is made upon a new consideration, by which an onerous and, possibly, expensive bur-then was cast upon the promissee. In McKenzie v. Jackson, [4 Ala. 230,] we had occasion to consider this question. There, the consideration for the promise, which was not in writing, was the receipt, by the promissor, of [696] ¡a stock of goods from 6., in consideration of which, he agreed, by deed with G. to pay Certain of his creditors; and afterwards, by parol, promised the plaintiff, one of them, to pay his debt, and we held the promise not within the statute of frauds. The decision in that case turns upon the fact, that the promise was made upon a new consideration beneficial to the promissor. The same decision was made by the supreme court of Massachusetts, in the case of Nelson v. Boynton, [3 Metcalfe, 396,] after an elaborate examination of the authorities. The case was, that a creditor* had commenced a suit by attachment, and levied on the property of the debtor; and a son of the debtor promised the creditor that if he would dismiss the attachment ho would pay the debt. The attachment was dismissed; and the debt not being paid, a suit was brought upon the promise by the creditor against the son. The court held it to bo within the statute, because the consideration for the promise was not beneficial to the promissor, though it might be injurious to the promissee. In this case, the promise was of no benefit whatever to the pvo^ missor, and was not, therefore, binding as an original promise between the parties to the new contract under the statute of frauds, unless in writing. A promise by A. that he will pay B. a debt, which the latter** claims of him, if he will swear to it or prove it in a particular* mode, would doubtless be a good consideration for an action on the promise at common law. [See the cases collected on this head in Com. Dig. Assumpsit B. 4.] But in these cases, it is to bo observed, that the debt is a consideration to support the promise. When the promise is to pay the debt of another, the debt may be a sufficient consideration; but the statute requires that it should bo in writing, unless the consideration of the promise is beneficial to the person making it. In that event, it is a Hew and substantive contract not within the contemplation of the statute, the design of which was not to pi-otect men against the payment or discharge of their own contracts, but to protect them against the payment of the debts of others. The declaration does not state whether the contract was in writing or not; nor was it necessary that it should have, been stated to be in writing: it will be sufficient if it is proved to be so on the trial. The court, therefore, erred in sustaining the demurrer to the declaration; and for this causo the judgment must be reversed, and the cause remanded.