Cook v. Barrett

By the Court, Cole, J. As we understand tbe facts of this case, tbe last item of tbe respondent’s account does not come within tbe statute af frauds. It is not the promise to answer for tbe debt or default of another, but an original undertaking by tbe Barretts. It appears that'Walker was owing Cook, and that tbe Barretts were owing Walker. So it was agreed by and between all tbe parties, that Cook should release bis debt against Walker and look to tbe Barretts alone for tbe payment of tbe four dollars. For Cook says in substance, in bis testimony : “ Walker owed me and worked for tbe Barretts to tbe amount of four dollars, and it was agreed between me, the Barretts and Walker, that tbe Barretts should pay me the four dollars, and that I was to look to them for it.” If this were so, we suppose the original debt from Wal-. ker to Cook, and .that from tbe Barretts to Walker, were discharged, and tbe new debt was substituted in lieu of those previous debts. ' Cook could no longer look to Walker for payment, because be had released him by this new arrange - ment and accepted the Barretts for bis debtors. This brings the case precisely within that class of decisions wbicb bold that when tbe original debt becomes extingriisbed, and tbe creditor has only tbe new promise to rely upon, it is not within tbe statute. All tbe cases cited by tbe counsel for [598] the appellant recognize this distinction, and we do not understand him to controvert the position that if Walker’s debt was extinguished by Gooh in consideration of the Barretts' agreement to pay it, then they are liable. As we understand the evidence, this was the case. We suppose, however, that the justice erred in taxing the fees of the appellants’ witnesses against them. Where a party recovers judgment in an action like this, the statute permits him to recover his costs. But we do not understand that he has a right to recover the costs of the other party. It does not concern the respondent whether the appellants pay their witnesses or not. He has not paid them, and is not liable to pay them ; why then should he recover their fees in his judgment ? We are not aware of any reason why he should, and think they must be struck out of the judgment. The j udgment must be modified 'so as to strike out the $4.45 for fees for the appellants’ witnesses, and affirmed as to the residue.