Durant v. Allen

The opinion of the court was delivered by Peck, J. The only exception relied on is to the ruling of the court, that upon the special finding of the jury the plaintiff could not recover, as the verbal contract claimed by tho plaintiff came within the Statute of Frauds, and thereupon rendering judgment for the defendant; the defendant’s counsel claiming that tho contract was not within the Statute of Frauds. The verbal promise relied on by the plaintiff clearly comes within the letter of the provision of the statute that “ no action at law or in equity shall be brought, * * * to charge any person upon any special promise to answer for the debt, default, or misdoings of another,” unless such promise, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized. The demand which the plaintiff had was not the' debt of the defendant, but the debt of another. It accrued in the lifetime of her husband, and solely against her husband, and so continued up to and at his decease, which event cast no liability upon the defendant on account of it. It still remained a debt against the estate of the deceased, with no means or remody for its collection, except upon such of the property of tho decedent as the law would appropriate to its payment. But the case shows that there was no property of the estate applicable to the payment of debts of the estate. Tho real estate consisted of a homestead that the Probate Court and the jury found to be of less 61 value than five hundred dollars, and which by law vested in the defendant without being subject to the debts of the deceased. The personal property was of so small value — less than one hundred dollars — that the Probate Court was authorized bylaw to set the whole of it to the defendant, the widow, which, together with the homestead, was assigned to the widow accordingly, in pursuance of the statute. The cases most relied on by the plaintiff, and urged as analogous to the case at bar—Cross v. Richardson, 30 Vt. 641, and Templeton v. Bascom, 33 Vt. 132—differ from this in an essential particular; this case being wanting in the very fact which constitutes the basis on which those cases rest. To bring the case at bar within the principle of those cases, it should be shown that in consideration of the defendant’s promise, the plaintiff, at the instance of the defendant, discharged a lien which he had upon property of the original debtor for the payment of the debt, as in Cross v. Richardson; or that he discharged or surrendered to the defendant, in consideration of her promise, a right which he had to have his demand satisfied out of the estate of her deceased husband, as in Templeton v. Bascom. But no such fact is shown, but the contrary appears. There was no property of the estate upon which the plaintiff had any lien, or which the law would appropriate to the payment of his debt against the deceased. Fullam v. Adams, 37 Vt. 391, is an illustration of this principle. It is insisted on the part of the plaintiff, that “ when the original demand is destroyed or discharged by the new parol agreement, the Statute of Frauds does not in general apply.” But, on the decease of the original debtor, the only claim the plaintiff had left was against such of the property of the deceased, if any, as the plaintiff had a right by law to have appropriated to tho. payment of his demand. There being no such property, there was nothing valuable subsisting to be discharged by the new verbal agreement. Tho County Court properly held that the agreement was within the Statute of Frauds; and independent of the Statute of Frauds, there does not appear to bo any sufficient consideration to uphold the defendant’s promise. There was no error in the ruling of the County Court in directing a verdict for the defendant. Judgment affirmed.