Westmoreland v. Porter

SOMERVILLE, J. -The agreement sued on purports on its face to be one of mere suretyship on the part of the defendant, Porter, in which he obligates himself to pay the plaintiff an antecedent debt of six hundred and fifty dollars, due to the plaintiff by one McGehee. The agreement itself is signed by the defendant alone, and does not express any consideration. One of the questions arising in the case is, whether this agreement is void within the influence of the statute of frauds, as “ a special promise to answer for the debt, default or miscarriage of another.” It is required that agreements of this class shall not only be in writing and subscribed by the party to be charged, but that the written note or memorandum shall express the consideration.—Code, 1876, § 2121; Rigby v. Norwood, 34 Ala. 129 ; Horton v. Wollner, 71 Ala. 452. There is an important class of cases, now fully recognized by all the authorities as not falling within the statute, which in mere form appear to be promises to answer for the debt of another, but which are, in reality and legal contemplation, promises to pay the debt of_thepromisor himsblf, and which would be binding upon him 'Its''a verbal obligation independently of any writing. This court has followed the line of decisions in this country which bring within this class all promises ostensibly to pay the debt of another, which constitute an original undertaking, based on a new and independent consideration, whether of benefit or detriment, moving between the newly contracting parties.—Thornton v. Williams, 71 Ala. 555 ; Lehman v. Levy, 69 Ala. 48 ; Dunbar v. Smith, 66 Ala. 490 ; Burkham v. Mastin, 54 Ala. 122 ; 2 Brick. Dig. p. 31, § 234, and cases cited. Our rulings on this point follow the doctrine [458] announced in Leonard v. Vredenburg, 8 John. (N. Y.) 29, which, however, in its broadest scope, seems not to be the prevailing rule in this country.—Browne on Stat. Fr. §§ 207, 212; Validity Verb. Agr. (Throop), § 613. We do not desire, at this late day, to disturb the authority of these numerous adjudications. None of the courts raise any controversy about those cases where the original debtor is discharged and the debt released, and a new debt and debtor substituted in their stead by a contract in the nature of novation. This class of cases is universally excepted from the influence of the statute of frauds. Thornton v. Guice, 73 Ala. 321; Underwood v. Lovelace, 61 Ala. 155 ; Browne on St. Fr. § 193. The class which we are now discussing is of another kind than the last mentioned. It embraces agreements which are in form mere promises of guaranty or suretyship, the original debtor not being discharged or released. The essential and real function of such new agreement, however, is to pay a new debt contracted by the promisor upon a new consideration of beuefit to himself and moving from the promisee, and although this becomes his own debt, he agrees to discharge it by paying a debt due by another, which is a mere incident of the transaction. “The substance of the transaction is undertaking to-pa,y his own debt in a particular way.”—Browne on Stat. Frauds, §§ 214a, 212; Blount v. Hawkins, 19 Ala. 100 ; Dunbar v. Smith, 66 Ala. 490. “ The debt of another,” as said in Wolff v. Koppell, 5 Hill (N. Y.), 458, “ comes in incidentally as a measure of damages.” And in such cases, the whole transaction, viewed as a new and independent contract, must be of such a character that it would support a promise by the defendant to the plaintiff to pay the same sum of money without reference to the existence of any debt from another, or a third person. Chandler v. Davidson, 6 Blackf. 367 ; Browne on Stat. Fr. § 212, and note 1, § 214a; Emerson v. Slater, 22 How. (U. S.) 28; 3 Addison’s Contr. §§ 1111-1112. A common illustration of this general class is found in cases where the defendant, or party sought to be charged, has received property or funds placed in his hands, and belonging to the original debtor, which he holds in a sort of trust capacity, and from which he has promised to pay the original debt.—Browne Stat. Fr. §§ 214e, 209 et seq. ; Lee v. Fontaine, 10 Ala. 755; Throop on Verbal Agr. § 584, et seq. ; Fullam v. Adams, 37 Vt. 391. Still another illustration is found in cases where a creditor has a lien on his debtor’s property, and a third person, having a subordinate lien, or other interest in the same property, promises the creditor to pay the debt in consideration of the relinquish [459] ment of the lien, which thus enures to his, the promisor’s, benefit. These cases very clearly are promises to pay the promisor’s own debt, and not mere guaranties of the debt of another. — 3 Parsons’ Contr. 25; Browne on Stat. Fr. §§ 214c, 214c. . The rule governing this particular class of cases is thus expressed in a recent treatise where the authorities are all reviewed with discrimination and ability. “ A promise to pay the debt of another,” observes this author, “ is not within the statute, if its consideration was the abandonment to the promisor of a security for the payment of the debt, consisting of alien upon, or interest in property, to which the promisor then had a subordinate title.” — Validity Verb. Agreements (Throop), § 571 ei seq. , The old rule was that a verbal promise to pay another’s debt would be supported by a mere surrender of a lien on the property of the original debtor, whether made for his benefit, or that of the new promisor. Perhaps a case of this kind would come within the rule settled by our own decisions. But the great current of modern authority clearly sustains the view, that the new promisor must have an 'interest of some kind in the property to which the lien attached, so that its surrender will enure to liis benefit. lie thus becomes the purchaser of the lien, or of the interest of the promisee in the property thus encumbered at a price measured by the amount of the original debt, which he agrees to pay. - This-precise point, however, as to the person in whose favor" the lien is surrendered, we need not decide, contenting ourselves with a citation of some of the authorities bearing on the question.—Browne on Stat. Frauds, §§ 214c, 224d; Validity Verb. Agr. (Throop) §§ 594, 595, et seq., 603 ; Nelson v. Boynton, 44 Mass. (3 Metc.) 396 ; Dexter v. Blanchard, 93 Mass. (11 Allen) 365 ; Mallory v. Gillett, 21 N. Y. 412 ; Brown v. Weber, 38 N. Y. 187; Landis v. Royer, 59 Penn. 95 ; Corkins v. Collins, 16 Mich. 478 ; Dunbar v. Smith, 66 Ala. 490. Whatever may be the correct principle as to this point, there|' can be no doubt of the proposition, that where the promisor is interested in the property, and the relinquishment of the lien r does enure to his benefit, the promise does not come within; the statute of frauds, and not only need not express the consideration if in writing, but need not be in writing at all. The agreement here sued on is, as we have said, in form a guaranty, or promise of suretyship. There are but two facts which can be urged, with any degree of force, as constituting a consideration for it. The first is the forbearance of the plaintiff to enforce his demand by the levy of an attachment on McG-ehee’s crops, whether for a definite or indefinite period of time. The second is the alleged relinquishment of two hundred dollars of the original debt of MeGehee, which enured to ■ [460] the benefit of the defendant pro tcmto, he having a second lien on the same crops for advances, subordinate only to that of the plaintiff which was for rent. It is not contended, nor does the-evidence tend to show that the lien of the landlord was otherwise waived or surrendered. While the forbearance of a creditor to enforce his demand is undoubtedly a sufficient consideration for the guaranty of the debt by another, yet it is precisely one of that class of considerations which is required by the statute to be expressed in the written agreement of guaranty, and is uniformly held not to take the defendant’s promise out of the influence of the statute.—Musick v. Musick, 7 Mo. 495 ; Hilton v. Dinsmore, 21 Me. 410; Browne Stat. Fr. § 190, note 2, and cases cited. The agreement itself expressing no consideration, it clearly came within the statute of frauds, and was, therefore, void, nnless the jury believed that there was a release of some portion of the original rent debt due by McGehee, which, if released at all, it is not denied, enured to the benefit of the defendant. It is only in the latter aspect that it can be properly regarded as an agreement by the promisor to pay his own debt, and, therefore, not within the statute, or as supported by a valid consideration. We discover no error in the charge of the court, or any of its rulings, touching this branch of the case, which, at least, was prejudicial to the appellant. It was further insisted by the defendant in the court below that the contract or agreement sued on was released or rescinded by mutual agreement of the defendant and the plaintiff. The evidence tends to show that this was agreed to be done by a mere declaration of the parties, without any consideration whatever moving from the promisor to the promisee. It is unnecessary that we should enter into any discussion as to the circumstances under which contracts may be rescinded or modified by mutual consent, without other consideration. The cases are numerous in which the general rule on this subject has been stated.—Cooper v. McIlwain, 58 Ala. 296 ; Burkham v. Mastin, 54 Ala. 122 ; 1 Brick. Dig. p. 394, & 233; Bishop on Contr. §§ 665-672. It is enough to say that if the contract has been performed,! or exeented on one side, and only money remains to be paid on! the other, the case is manifestly like that of any other debt, and can only be discharged in like manner,—Bishop on Contr. § 672.1 It is a fundamental principle of our system of jurisprudence, that “ an agreement to abandon a claim, unless there be a consideration shown, is a mere nudum pactum.”—1 Addison on Contr. $ 363. If the present contract can be sustained as valid, so far as the evidence shows, it must be upon the theory of a [461] purchase by the defendant of a certain interest from the plaintiff in the crops of his tenant, McGehee. This was executed by a delivery. There can, therefore, be no essential or sound distinction between this case, and the ordinary one of a contract for the sale of goods, where the goods have been sold and delivered. In such cases it is well settled that a naked agreement 4 that the contract be rescinded or annulled will not discharge or release the purchaser from his liability to pay the purchase-money.—Edwards v: Chapman, 1 M. & W. 231; 1 Add. Contr. (Amer Ed.) 1878, § 363. This can only be done by full payment, release, or accord and satisfaction.—Nesbitt v. McGehee, 26 Ala. 748; Holloway v. Talbot, 70 Ala. 389. In this view of the case, it is immaterial whether McGehee was legally or in fact a party to the agreement sued on or not. The evidence did not tend to show any rescission or release of the debt due the plaintiff, the alleged agreement to rescind being a mere nudum pactum, without binding force on the plaintiff, because unsupported bv any consideration. The court errad in its rulings on this branch of the case, and the judg-mSt must be reversed and the cause remanded.