Brinkley Car Works & Manufacturing Co. v. Cook

Smith, J., (after stating the facts). An agreement not to exercise a legal right isi a valid consideration to support a contract. Lay v. Brown, 106 Ark. 1; 151 S. W. 1001. And the agreement alleged in the complaint was a new and original consideration, moving between the newly contracting parties, which takes the promise to pay Hirsch’s debt from without the statute of frauds. The controlling question in cases involving an agreement to pay the debt of another is whether the agreement so to do is original or collateral. “A promise by a third person to pay the pre-existing debt of another founded upon an original liability, and without any new consideration to support it, is a collateral undertaking and within the statute of frauds. Krutz v. Adams, 12 Ark. 174; Chapline v. Atkinson, 45 Ark. 67; White v. Rintout, 108 N. Y. 222. .But the facts alleged in the complaint are that subsequent to the making of the original debt the appellant refrained from pursuing a statutory remedy to enforce the payment of its debt, and by so doing lost the lien given it by the statute, and this indulgence was extended at appellee’s request and in consideration of his promise to pay the debt. This promise was therefore an original undertaking upon a new consideration, and was not required to be in writing, and the demurrer should have been overruled. Zimmerman v. Holt, 102 Ark. 407, and cases there cited. The judgment of the court below will therefore be reversed and the cause remanded with directions to overrule the demurrer.