Paris v. Hilliard

The opinion of the court was delivered by TYLER, J. The plaintiff’s evidence tended to show that he owned certain premises in Danby that were occupied by one Parker; that on Nov. 13, 1888, Parker brought to the barn on the premises a pair of oxen for which the plaintiff agreed with Parker to furnish hay at its worth; that the oxen remained there fourteen weeks and during - that time were supplied with hay by the plaintiff under the agreement; that on December 6th of that year one Wheeler procured from Parker a mortgage of the oxen and in connection with the transaction orally promised the plaintiff to pay him his past and future charges for keeping them; that Jan. 21,1889, Wheeler, who had been in the plaintiff’s employment but had gone into the service of the defendant, sold and assigned the mortgage to the defendant; that soon afterwards Wheeler went to the plaintiff’s house' and settled his general account with him, informing him' that he had sold the mortgage [319] to tbe defendant who had assumed and would pay the plaintiff’s charges, and that the plaintiff thereupon omitted the cattle keeping account from the settlement; that the defendant soon after-wards met the plaintiff and orally promised him that he would pay his charges and that the plaintiff did not afterwards look to Wheeler for payment. The plaintiff’s evidence further tended to show that in February following Parker secretly removed the oxen into the State of New York, that his son then paid the defendant the sum that the latter had paid Wheeler for the mortgage and took the mortgage away with him, and that the defendant afterwards refused to pay the plaintiff any part of his charges. All this evidence was received subject to the defendant’s exception. The evidence of the defendant tended to contradict the plaintiff’s on every material point. He denied making the alleged promise and denied having any 'knowledge of the plaintiff’s charges until after he had surrendered his mortgage to Parker’s son. The plaintiff’s testimony that Wheeler had told him that the defendant had promised to pay Mm naturally would have weight with the jury in determining whether the plaintiff or the defendant told the truth. It does not appear that Wheeler testified in the plaintiff’s behalf in relation to the making of the mortgage and about his and the defendant’s promise to pay the plaintiff, but the plaintiff testified to what Wheeler told him in relation to these subjects. The exceptions state that “it did not otherwise appear that this was true.” There was error in permitting the jury to consider this testimony as bearing upon the main question in controversy, namely, whether or not the defendant made the promise. Had it been given by Wheeler it would have been competent as tending to show an admission by the defendant, but given by' the plaintiff it was hearsay. It is sound as a general proposition, that a parol promise by [320] one to pay the debt of another in consideration of property placed by the debtor in the promisor’s hands for that purpose is not within the statute of frauds. It is an original promise and binding upon the promisor, whether the liability of the debtor continues or is discharged. Wait v. Exr. of Wait, 28 Vt. 350; Bailey v. Bailey, 56 Vt. 398. But in this case' there was no legal evidence tending to show that the defendant promised to pay the plaintiff’s debt in consideration of having taken an assignment of the mortgage. Judgment reversed and cause remanded.