Young v. French

Cole, J. In Dyer v. Gibson, 16 Wis., 557, the chief justice opens the opinion with some observations so very pertinent to the facts of this case and the question of law involved, that I cannot do better than quote them here. He says: “We cannot discuss the question whether the promise of one person, though in form to answer for the still subsisting debt of another, if founded upon a new and sufficient consideration moving from the creditor and promisee to the promisor, and beneficial to the latter, is within the statute of frauds, and therefore void unless it be in writing expressing the consideration and subscribed by the party making it. Decision has been multiplied upon decision, with scarce a syllable of conflict, for more than a century, that such a promise is not reached by the statute. * * The distinction is between cases where the person promising has for his object a benefit accruing to himself, in which the original debtor has no interest, and from which he derives no advantage, and where his primary and leading object is-to become surety for the debt of another without benefit to himself, but for the exclusive advantage of the other parties to the contract.” The distinction here made, that where the party promising has for his object some benefit and advantage accruing to himself, and on that consideration makes the promise, distinguishes the case of an original undertaking from one within the statute. Brown v. Weber, 38 N. Y., 187. In the present case, there can be no doubt that the jury found, under the instructions of the court, that the defendant agreed [117] to become individually responsible for plaintiff’s claim, and agreed to pay it by November 15th, if the plaintiff would forbear to sue or desist from enforcing his lien. Assuming that these facts were established by the evidence, the question arises, Was the defendant’s promise valid ? We think the question must be answered in the affirmative. The promise was founded upon a new and distinct consideration moving from the plaintiff to the defendant. The defendant was in possession of the logs under the agreement, and he was directly interested, to the extent of his commissions, in retaining the possession and in disposing of the lumber manufactured from them. If the logs, or any portion of them, should be taken from his possession and control by the plaintiff to satisfy his lien, his commissions would be correspondingly, diminished. It was a benefit and advantage to the defendant that the plaintiff should not enforce his lien and. take the property out of his possession. Eor, if this were done, his commissions on that property alone would be lessened $15, or thereabouts. The plaintiff was induced to relinquish his lien, upon the promise of the defendant to pay the debt. And that promise, though in form it was to pay the debt of McGrilton, Bracklin & Co., yet was founded upon a new and valuable consideration moving from the plaintiff to the defendant, and beneficial to the latter. It was a matter of personal interest and profit to the defendant to retain possession of the property which the plaintiff was about to seize under his lien proceeding. And in consideration that the plaintiff would relinquish that proceeding, and leave the logs in his possession, he made the promise. Under the charge of the court, the jury must have found these facts. In that case, the undertaking of the defendant was not collateral to the promise of McGrilton, Bracklin & Co., but was an original contract, founded upon a sufficient consideration arising directly between him and the plaintiff. And it was quite immaterial whether such a promise was in writing or rested in parol. A class of cases quite analogous in principle to the one before us, is referred to by C. J. [118] Comstock in bis opinion in Mallory v. Gillett, 21 N. Y., 412, on pages 429 and 430. It is said the plaintiff was not entitled to a lien upon the logs by reason of his services, because he acted as cook for Mc-Gilton, Bracklin & Co., and did not perform labor directly upon the logs. We do not agree in this construction of the statute giving a lien for labor and services upon logs and lumber. But it is unimportant whether the plaintiff in fact had a valid lien or not. The defendant treated with him on the assumption that he had such a lien, and chose rather to buy him off than to contest its validity. It results from these views that the judgment of the circuit court must be affirmed. By the Court. — Judgment affirmed.