Graves v. Shulman

MANNING, J.— The plea in effect alleges that one Mead being indebted to defendant by a note made by him and [407] another, which had become the property of defendant, and being willing and about to secure the payment thereof by a mortgage to him of some property, appellees, the plaintiffs in the Circuit Court, to whom also said Mead was then indebted, and of whom he proposed to purchase other goods during the current year, agreed with said Mead and defendant, that in consideration that Mead would and did execute a. mortgage of the same and other property to plaintiffs, to secure payment to them of the debt so due and to be contracted, and also of the amount of his debt to defendant, they, the plaintiffs would pay, as they did, in cash, to defendant, three hundred dollars of the debt of Mead to him, and would pay the residue thereof, the next fall afterwards, to defendant; but that, although in pursuance of the agreement, the debt of Mead to defendant was discharged.and extinguished, plaintiffs did not and would not pay the said residue of said debt to defendant, but were now on account thereof indebted to him |236 12-100, besides interest; which indebtedness they offered to set-off against the debt sued for. To this plea a demurrer was sustained; and the main question presented for our decision, is, whether or not under the statute of frauds the contract set up in the plea, was not void as an agreement, not in writing to pay the debt of another person. It has been frequently decided in this State, that the promise of one to pay the debt of another, made upon a new and valuable consideration beneficial to the promissor, is not within the statute of frauds.—See some of the cases referred to in Mason v. Hall, 30 Ala. 601, and Ragland v. Wynne, 37 id. 32. The other ground of demurrer, that the agreement described in the plea was of an older date than was the note which is sued on—and could not, therefore, be set up against the note, is not well taken. Although the giving of a note is often prima faeie evidence that a previous indebtedness of the payee to the maker has been, or is discharged, it is allowable to allege and show in qny particular case, that in such case, this is not true. And in the plea under consideration, it is alleged that the prior indebtedness of plaintiffs to defendant set up in the plea of set-off was not in fact discharged. Let the judgment be reversed and the cause remanded.