Harrington v. Rich

[672] The opinion of the court was delivered by Royce, J. — Some of the questions now discussed have occasioned the court no difficulty. By the submission, the arbitrators acquired authority or jurisdiction over the subject matter submitted, which had not been revoked at the time of appointing their last session; nor had such a period elapsed as to afford any presumption that the plaintiff had abandoned his claim. As no time appears to have been limited for the arbitrators to make and publish their award, it was their duty, at the request of either party, to proceed within any reasonable time. We have as little doubt of the competency of the evidence admitted, relating to the plaintiff’s application for a renewal of the commission. Had the application been followed by any proceeding of the probate court upon it, the record of that court would have been the proper evidence of both. But the object was merely to establish the fact, that application was made io the probate judge; and not to show any step taken, or proceeding had, which would necessarily have become a matter of record. The order drawn by Willard and Rich in favor of McCloud, does not,, on its face, import a sale or transfer of the debt for which it was drawn. It authorised McCloud to receive the amount of the debt from Rich, but was silent as to the character in which he was to hold the money; whether in his own right, or as agent of Willard. • McCloud appears never to have acted on the order by presenting it for ácceptance and payment, nor did he, as an agent might be expected to do, return it to Willard. He kept it for more than five years, and then by his own endorsement transferred it to Allen. And this must have been done in the presence of Willard, and with his knowledge ; since his name appears as a witness to the endorsement. These facts are not easily reconciled with the supposition, that the order was meant to create a mere agency, or that the transfer by McCloud was intended to operate only as a secondary authority from Willard, to be exercised for his benefit. They rather imply an interest in McCloud, recognized by Willard. The case also states, that no claim to this debt appeared to have been asserted by Willard, from the time of giving the order in A. D. 1822. On the whole, we incline to the opinion, that the jury were rightly permitted, upon the order, and the pecu [673] liar circumstances connected with it, to find the several assignments of the debt, as alleged in the declaration. The remaining subject of inquiry is, the validity of the defendant’s promise, as affected by the statute of frauds. All question as to the sufficiency of the consideration to render the promise binding on the defendant personally, aside from the statute, is purposely avoided. The point was not distinctly taken in argument on the part of the defendant, nor is it necessarily involved in the decision about to be made. The statute of November 9th, A. D. 1822, (answering, in part, to the 4th section of 29 Charles II. ch. 3,) has, among other things, enacted, “ That no suit, in law or equity, shall be brought or “ maintained, upon any contract or agreement hereafter to be “ made, whereby to charge any executor or administrator, upon “ any special promise, to answer damages out of his own es- “ tate ; or whereby to charge the defendant upon any special “ promise to answer for the debt, default, or miscarriage of an- “ other person-“ unless the contract or agreement, upon “ which such action shall be brought, or some memorandum or “note thereof, shall be made in writing, and signed by the par- “ ty to be charged therewith, or some other person thereunto “ by him lawfully authorized.” In principle, the two classes of undertakings here mentioned, are very nearly allied. And but for the fact, that in a qualified sense the executor or administrator personates the real debtor, (his testator or intestate,) they might be treated as identical. There is no occasion in this case to consider them separately. The promise of the defendant being by parol without writing, being a promise in his personal or individual capacity, and relating solely to a claim against the estate of Rich, and not to any private debt of his own, must be regarded as embraced by the statute, unless it can be taken out of its operation by some settled rule of exception. The statute has been held not to invalidate the contract, where the party making the promise has assumed some other duty, and not the payment of the very debt which was due from the third person. This was the ground of decision in Reid vs. Nash, 1 Wils. 305; and in the case in Ambler, where the defendant promised, in consideration of being let in as co-administrator with another, to make good any deficiency of assets. So, where the transaction amounts to a purchase of the debt, which is to be kept on foot for the benefit of the par [674] ty promising — 4 Bos. & Pul. 124; and where the party receiving the promise., is induced by it to give up a lien upon property for his debt, as in the case of the landlord about to dis-train for rent, 3 Bur. 1886 — of the carriage-maker, 3 Esp. R. 87 — of the policy broker, 2 East. 326 — of the sheriff releasing goods in execution, 1 Salkeld; and many others. Again, where the promissor is already liable for the debt, either alone, or jointly with others, 5 Mod. 205. — 1 Esp. R. 162. None of these grounds of exception appear to comprehend the present case. This was not an undertaking for any distinct or collateral object, but a direct promise to pay the demand on the estate, if the arbitrators should adjudge it to be due. In this respect the case resembles 2 B. & A. 613, and 2 Day, 457. The terms of the contract import no intention to purchase the claim, but simply to pay and satisfy it. Nor did the plaintiff surrender any lien on property, or other collateral means of satisfaction in his hands: he only discontinued his suit, as in Fish vs. Hutchinson, 2 Wils. 94. And although, as administrator, the defendant was subject to a contingent responsibility in regard to this debt, it was not of such a character as the rule requires. That contemplates a personal liability. To hold otherwise, would in effect repeal the statute, so far as it relates to executors and administrators. It is also said, that if in taking the new promise the original debt becomes extinguished or discharged, the promise is not within the statute. — 1 B. & A. 297. This assumes that the statute operates only on collateral undertakings, and therefore has no effect, unless the demand continues in force against the party previously liable. I am not aware that this doctrine has been settled under our statute. The question was raised in Livingston vs. Wilkinson, which came before the court in Franklin county, at the January term, A. D. 1828; but the case has not been reported, and is understood to have turned on another point. The present case does not require us to pass upon it. Here was obviously no discharge of the estate, at the time of giving the promise. To prove this, it is only necessary to suppose, that the power of the arbitrators had been revoked within the six months allowed by law for opening the commission. In such an event the plaintiff might unquestionably have proceeded against the estate. And indeed, a mere agreement to arbitrate, and perform the award to be made, is never a discharge of the cause of action submitted ; because [675] the right of revocation is a mutual right, and incident to the nature of an arbitration. Again it is said, that where a promise to pay the debt of another is founded pn a new and original consideration, moving between the newl^- contracting parties, the promise is not affected by the statute. — Chit. Cont. 203. — 8 John. 39. This, as a distinct rule, is to be received with caution. The instances adduced in illustration of it, are properly classed under other heads of exception already noticed. They are cases where the new contract was not limited to the debt, but was apparently induced by another object, as the purchase or extinguishment of some collateral right, interest, or lien of the creditor. To whatever extent the rule should be adopted, we are not satisfied of its application to this case. Here was no consideration moving to the defendant, but all the contemplated benefit on that side resulted to the estate. The plaintiff, it is true, incurred delay and inconvenience. But such is also the fact, whenever a promise is given to guaranty the debt of another, in consideration of forbearance: yet such a p'romise is within the statute. — 2 Stra. 873. The requisites of the statute are not to be confounded with those of a valid promise at common law. A consideration is essential independently of the statute, which has added the necessity of written evidence. The case of Moor vs. Wright, 1 Vt. R. 57, is inapplicable to the point under consideration, as the cause of action in that case accrued before the present statute was in force. The promise declared upon must be regarded as equally within the statute, whether considered as a guaranty for the debt of another, or as a promise by an administrator to answer damages out of his own estate. Judgment of county court reversed, and new trial granted.