Pratt v. Humphrey

Storrs, J. The questions presented in this case are, 1, whether a sufficient consideration is alleged for the promise stated in the declaration; and, 2, whether such promise is within either of the first two branches of the statute of frauds, and should therefore have been in writing. 1. A good consideration is necessary to the validity of this promise, whether it is within the statute of frauds, or not. Mitchinson v. Hewson, 7 T. R., 344, n. Allen v. Bennett, 1 Saund., 211, n. 2. Burrell v. Russell, 3 Taunt., 173. Claney v. Pigott, 2 Ad. & El., 473. It being stated in the declaration, that the claim of the plaintiff against the estate represented by the defendants, was for a debt due to the former, a presentment of it by him, to the defendants, within the time limited for that purpose, was necessary in order to recover it; and an omission so to present it, would operate as a discharge or relinquishment of it. The time limited for such presentment expired, long before the commencement of this suit. The declaration fur [322] ther alleges, that the plaintiff, at the request of the defendants, has never presented said claim to the latter. We can not doubt, that such forbearance to present it, constituted a sufficient consideration for the promise of the defendants therein stated. It comes within the well settled and familiar principle, that the discharge or relinquishment of a well founded legal claim, or forbearance for a certain or reasonable time, or altogether, to institute or prosecute legal proceedings for its recovery, is a sufficient consideration for a promise to the creditor to pay the debt, or to do any other act. 1 Roll. Ab., 24, pi. 33. 2 Saund., 136. Chit, on Cont., (6 Am. ed.,) 34. The defendants, however, claim, that such discharge or relinquishment or forbearance is not a sufficient consideration for such a promise, by an executor or administrator, personally, unless he has assets of the estate represented by him, in his hands ; and that, as he is not stated to have had such assets, the promise here is not binding. It js clear from the authorities, that although the mere possession of assets by an executor or administrator, would not be a good consideration to charge him personally on such promise, a new consideration, such as forbearance to proceed against the estate he represents, is sufficient for that purpose, although he has no assets. Rann v. Hughes, 7 T. R., 346, n. Parish v. Wilson, Peake’s R., 73. Forth v. Stanton, 1 Saund., 201, n. 1. Barber v. Fox, 2 Saund., 136. Philpol v. Briant, 4 Bing., 717. Goring v. Goring, Yelv., 11, (Am. ed., by Metcalf,) n. 2. Treford v. Holmes, Hut., 108. Palmer's Case, id., 52. Porter v. Bille, 1 Freem., 125. 1 Co. Rep., 94. 1 Sw. Dig., 247. 2. If the defendants are not to be deemed to have assets of the estate which they represent, it would be a very embarrassing question, whether this promise is within, the first branch of the statute of frauds, which relates to a “ special promise [by an executor or administrator] to answer damages out of his own estate.” In that case, it would be dif [323] ficult to resist the claim, that it is a promise to answer damages out of their own estate. But if they are to be considered as having such assets, they would have a right to charge to the estate they represent, the amount of the damages recovered of them in this suit; and it would seem, therefore, that those damages would not come out of their own estate. They would not ultimately, at least, although they might, in the first instance. For, although the judgment would be against them personally, they would be indemnified against it, by the funds of the estate in their hands. Hence the damages would substantially be answered out of the estate of their intestate ; and the promise, in such case, would appear to be one which was not contemplated by that branch of the statute. The case of Stebbins v. Smith, 4 Pick., 97, is directly in support of this construction of it. There it was held, that a promise to pay a debt of a testator, made to a creditor, by an executor, who had given a bond to the judge of probate to pay the testator’s debts and legacies, was not within the branch of the statute of frauds of Massachusetts, relating to special promises by executors and administrators, to answer damages out of their own estate, (which is precisely like ours, on which the present question arises,) on the ground, that .the bond was an admission of assets. The court say : “ The suggestion, that the promise is void, by the statute of frauds, is clearly unfounded. It is not a promise by an executor, ‘ to answer damages out of his own estate,’ for the bond given to the judge of probate, is an admission of sufficient assets, which the defendant is estopped to deny.” The principle determined in that case, is, that where an executor or administrator has assets, a promise by him, to pay a debt due by the person he represents, is not within that branch of the statute. We are induced, although not without some hesitation, to adopt the same construction. Whether he would be liable on such promise, beyond the amount of such assets, it is not neces [324] sary to decide : the question before us is as to the right, and not the extent, of the recovery. Having come to the conclusion, that a verbal promise to pay a debt due by a deceased person, made to his creditor, by his administrator, is not necessarily within this branch of the statute of frauds, but that whether it is so or not, depends on whether the administrator has assets, we think that the defendants, in their plea, should have alleged that they had none, and that, for the omission to state that fact, the plea is insufficient. A plea in bar 'must state such facts and circumstances, as amount to* a complete defence to the action. On the principle which we have adopted, the fact stated in the plea in this case, that neither of the promises mentioned in the declaration, or any note or memorandum thereof, was made in writing, &c., did not necessarily, or prima facie, bring the promises within the statute. It would not, therefore, constitute a complete defence, unless the further fact was also stated, that there was a want of assets. That fact should have been stated, in order to show, that a written promise or memorandum was necessary. The only answer given to this objection to the plea, is, that the declaration states, that the defendants were administrators on the estate of the plaintiff’s debtor, and that it was, therefore, incumbent on the' plaintiff to state that they had assets, in order to make out a cause of action against them. This, however, was not only not required by the established rules and order of pleading, but would be contrary to them. The allegation of such administratorship was unnecessary, and indeed irregular. Without it, the declaration was perfect, and stated a cause of action which was neither strengthened nor weakened by it; it was not necessary to be proved at the trial, and a variance between that allegation and the proof would have been immaterial; it was, therefore, surplusage, and might be rejected. It being surplusage, and no part of the statement of the cause of action, it is obvious that it did [325] not impose on the plaintiff the necessity of superadding to it the statement of any other fact. If, indeed, the allegation showed, that the plaintiff had no cause of action, it would, although surplusage, have vitiated the declaration : but such was not the case. Com. Dig. Pleader, C. 28, c. 29. Arch. PL, 98. And yet the statement of that fact in the declaration, although unnecessary, perhaps, superseded the necessity of stating it in the plea, which would have been otherwise necessary. It seems to have been treated, by the defendant, as having that effect, and no question has been made on that point. 3. We are clearly of opinion, that this promise is not within the second branch of the statute of frauds, which relates to a “ special promise [by one person] to answer for the debt, default or miscarriage of another.” The promise here was made, not to the creditors of the plaintiff, but to himself, to pay debts which he owed to such creditors. Whether the terms of the statute are, or are not, sufficient to embrace such a promise, the object and occasion of it show, plainly, that it was intended to apply only to promises made to the person to whom another is answerable, and that such, therefore, is its true construction. The authorities also, on this point, are to this effect. Eastwood v. Kenyon, 11 Ad. & El., 438, (39 E. C. L. R., 137.) Barber v. Bucklin, 2 Den. R., 45. There is, therefore, no error in the judgment complained of. In this opinion the other judges concurred, except Church, C. J., who tried the cause in the court below and was disqualified. Judgment affirmed.