Bonebright v. Pease

By the Court, Pratt, J. Néither on the argument; nor in the .subsequent examination of this case, have the Court been able to discover any errors in the proceedings or decree in the Court below. . The-agreement of the defendants to pay the outstanding debts of the old'firm of Sutherland-, Denio & Co. in its legal effect, is a mere undertaking on their part, to indemnify the complainant against those debts, and ’:so the agreement has been treatéd, as well in the draft of the' bill as in the argument of the case, and yet the. complainant does" not pretend, by any allegation -contained,-in-his bill, that he has ever, in any way, been damnified in the least. . But if he had been, for aught that is averred or charged to the contrary, he has a full and adequate remedy at law. The discovery prayed for by the complainant cannot help his case, and if the defendant had answered the bill, and fully discovered the amount of, those debts still remaining unpaid, such discovery could not have ’ changed the nature of the agreement,'or the. character of the case, made by the bill. Nor could the Court below upon his case have granted him the relief prayed for, any more than a Court of Equity could decree-payment to be made by the principal to a promissory note in order to relieve the indorser from his legal liability upon it. The sale and actual surrender of the complainant’s interest in the business of the company to the defendants, was" a sufficient consideration for their agreement to pay the outstanding debts of the old firm of Sutherland, Denio & Co. The statute of frauds cannot therefore apply as' contended by the counsel for the defendant, although -the agreement was [322] in parol. The demurrer was properly sustained and the bill ■dimissed by the Court below, for want of jurisdiction.