Smith v. Estate of Rogers

Poland, Ch. J. The facts reported by the referee, are exceedingly vague and uncertain, but this is probably to be [143] accounted for by the antiquity of the transaction, and the decease of Rogers, one of the parties to it, rather than from any fault of the referee. The referee distinctly finds and reports that Rogers promised to pay the plaintiff’s debt against Randall. The counsel for the defendant claims, thaf this promise can not ■ be legally enforced for two reasons. 1st. Because not founded upon any sufficient consideration. 2nd. That it was a promise to pay the debt of another, and therefore invalid by the statute of frauds. The facts reported have some tendency to show, that the property of Randall went into the hands of Rogers upon an understanding between them that Rogers, out of the avails, should pay Randall’s debts, and that the amount of the property largely exceeded any just claim that Rogers himself held against Randall. It- Bogers received property of Randall for the purpose of paying his debts, and afterwards, in consideration of having such assets in his hands, expressly promised the plaintiff to pay his debt, such promise was supported by the consideration of having received funds of Pandall for that purpose ; Wait v. Executors of Wait, 28 Vt. 350; Merrill v. Englesby and Trustee, Ib. 150. If the facts reported are not sufficient toi show that Rogers received Randall’s property under an agreement between them that he was to apply it in payment of Randall’s debts, then the tendency of the facts found, is toward the conclusion that Rogers was endeavoring to cover up Randall’s property and keep it away from his creditors, and that Randall gave Rogers a note for more than he was justly indebted to him, confessed a judgment upon it immediately, and Rogers caused his execution to be levied'upon all Randall’s property, which was of a much greater value than the amount of the judgment. If Rogers purposely took Randall’s note, and a judgment upon it for a greater amount than was justly due to him, for the purpose of covering his property against his other creditors, such judgment was fraudulent as- to the creditors, and they might contest it by [144] attaching the same property he had levied upon, or in various other modes. The plaintiff claimed to Rogers that this was the case, and had procured a writ against Randall, for the purpose of attaching the property of Randall, and also summoning Rogers, as Randall’s trustee. The plaintiff had certainly the legal right to institute such legal proceedings to contest Rogers’ judgment, and endeavor to enforce payment of his debt against Randall. In this state of things Rogers told the plaintiff that Randall’s property was sufficient to pay all his debts if it was not eaten up in costs, and that if the plaintiff would hold on, he, Rogers, would pay the plaintiff’s debt. The plaintiff thereupon said that was all he wanted, and directed his officer, who was present, not to serve his writ, and Randall’s property was all sold on Rogers’ execution, at less than its value, and went into the hands of Rogers, and was disposed of by him. It is clear that this surrender and forbearance by the plaintiff of his legal right to contest the validity of Rogers’ judgment, and to obtain' Randall’s property for the payment of his own debt, at the request of Rogers, was’a sufficient legal consideraation to sustain Rogers’ promise to pay Randall’s debt to the plaintiff. This forbearance of the plaintiff might be an injury to the plaintiff, and was apparently clearly for the advantage of Rogers. If the plaintiff did not succeed in establishing what he claimed, and thus succeed in obtaining payment of his debt against Randall, Rogers, by his forbearing to attach the property, and trusteeing him, avoided the expense and vexation of a litigation of the matter. Whether Rogers’ promise to pay the plaintiff’s debt against Randall, was founded upon the consideration that he had received property from Randall for that purpose, or upon the consideration that the plaintiff would forbear to attach the property, and allow him to have it disposed of upon his own execution, without question or litigation ; we are of opinion that, under the decisions that have been made in this state, the promise must be regarded as an original undertaking by Rogers, g,nd therefore not within the statute of frauds. [145] The cases of Wait v. Wait, and Merrill v. Englesby, before •cited, establish the principle that a promise to pay the debt of another in consideration of property placed in the promisor’s hands by such debtor, for that purpose, is not within the statute. In Sampson v. Estate of Hobart, 28 Vt. 697, it was decided that where one creditor promised to pay the debt of another creditor against their mutual debtor, in consideration that the latter creditor would forbear to sue and attach the debtor’s property, but would allow the former to attach all the debtor’s property on his debt, the promise was an original undertaking, and not within the statute, of frauds, as a promise to pay the debt of another. In Cross v. Richardson, 30 Vt. 641, the plaintiff had attached certain property of Brown, his debtor. The defendant promised that he would pay the plaintiff one hundred dollars in part payment of his debt against Brown, in consideration that the plaintiff would release the property he had attached, which he did. It was held that this was not a promise to pay the debt of another, within the statute of frauds. It is not needful now to go over the reasons for these decisions, as they will be found at length in the pronounced judgments in those cases, nor to again attempt the hopeless task of endeavoring to reconcile the numerous decisions on this much vexed subject, as we regard these cases as having settled the rule of decision in this state, and as fully coverihg this case. The objection that the plaintiff subsequently took new notes of Randall for his debt, we think of no force, as the referee finds that this was done by the direction of Rogers. In one respect the judgment below was erroneous. The liability of Rogers to the plaintiff was fixed, when he made the promise. If he delayed making payment to the plaintiff, he would properly be held liable to pay interest on the amount of Randall’s debt, but only for ordinary simple interest. When the plaintiff took Randall’s notes subsequently, he took them payable with annual interest, and the referee in finding the sum for which the defendant is liable, if so at all, computed the notes of Randall with the annual interest thereon. The plaintiff claims that he took these notes really as the agent of [146] Rogers, and the interest the notes were to bear had nothing to do with the measure of Rogers’ liability to him. It does not appear that Rogers gate any direction, or even had knowledge of how the notes were written in this respect. The judgment below included annual interest on Randall’s notes, when it should have been, against this defendant, computed at simple interest only. But as this is mere computation', it can he corrected here.— The excess of interest by this erroneous mode of casting is therefore ordered to be deducted, and the judgment affirmed for the balance. As the defendant has succeeded upon his exceptions in lessening the amount of the plaintiff’s recovery below, he will he entitled tp his costs in this court.