Peele v. Powell

AllbN, J., after stating the case: The liability of a promisor to answer, “upon special promise, the debt, default, or miscarriage of another person” has been considered in numerous decisions of this Court, and there is frequently much difficulty in determining whether a particular promise is within the statute. The term “special promise” means an express promise, and not one implied by law. Browne Stat. Frauds, sec. 166. Whether oral or in writing, it must have a consideration to support it (Draughon v. Bunting, 31 N. C., 10; Stanly v. Hendrix, 35 N. C., 87; Combs v. Harshaw, 63 N. C., 198; Haun v. Burrell, 119 N. C., 547); but if in writing, the consideration need not appear in the writing, and may be shown by parol. Nichols v. Bell, 46 N. C., 32; Haun v. Burrell, 119 N. C., 547. If the promise is based on a consideration, and is an original obligation, it is valid, although not in writing. Hospital Assn. v. Hobbs, 153 N. C., 188. The obligation is original if made at the time or before the-debt is created and the credit is given solely to the promisor, as in Morrison v. Baker, 81 N. C., 80; Sheppard v. Newton, 139 N. C., 536, or if credit is given on the promises of both, as principals and as jointly liable, and not on the promise of one as the surety for the other. Browne Stat. Frauds, sec. 197; Horne v. Bank, 108 N. C., 119. So is a promise, made after the debt is created, when by reason of the promise the original debtor is released (Sheppard v. Newton, 139 N. C., 379; Jenkins v. Holly, 140 N. C., 379), and also if it is a promise to pay out of funds placed in the hands of the promisor by the debtor (Stanly v. Hendrix, 35 N. C., 86; Threadgill v. McLendon, 76 N. C., 24; Mason v. Wilson, 84 N. C., 53; Voorhees v. Porter, 134 N. C., 604), or if a promise based on a new consideration of benefit or harm passing between the promisor and the creditor. Whitehurst v. Hyman, 90 N. C., 489. [558] If, however, there is a promise to pay out of a particular fund, and the fund is not received by the promisor, it is not binding. Bagley v. Sasser, 55 N. C., 350. If one, under the former practice, .was arrested in a civil action, and was released on the oral promise of another to pay the' debt, the promise was binding because the release from arrest satisfied the original debt (Cooper v. Chambers, 15 N. C., 261; Draughon v. Bunting, 31 N. C., 10), but it was otherwise of an oral promise to pay upon condition that the creditor would not arrest the debtor, because the debtor remained liable. Britton v. Thrailkill, 50 N. C., 331; Rogers v. Rogers, 51 N. C., 300; Combs v. Harshaw, 63 N. C., 198. Where the promise is for the benefit of the promisor, and he has a personal, immediate, and jmcuniary benefit in the transaction, as. in Neal v. Bellamy, 73 N. C., 384, and in Dale v. Lumber Co., 152 N. C., 653, or where the promise to pay the debt of another is all or part of the consideration for property conveyed to the promisor, as in Hockaday v. Parker, 53 N. C., 17; Little v. McCarter, 89 N. C., 233; Deaver v. Deaver, 137 N. C., 242; Satterfield v. Kindley, 144 N. C., 455; or is a promise to make good notes transferred in payment of property, as in Adcock v. Fleming, 19 N. C., 225; Ashford v. Robinson, 30 N. C., 114, and in Rowland v. Rorke, 49 N. C., 337, the promise is valid although in parol. If, however, the promise does not create an original obligation, and it is collateral, and is merely superadded to the promise of another to pay the debt, he remaining liable, the promisor is not liable, unless there is a writing; and this is true whether made at the time the debt is created or not. Smithwick v. Shepherd, 49 N. C., 197; Bagley v. Sasser, 55 N. C., 350; Scott v. Bryan, 73 N. C., 582; Rowland v. Barnes, 81 N. C., 239; Haun v. Burrell, 119 N. C., 547; Garrett-Williams Co. v. Hamill, 131 N. C., 59; Sheppard v. Newton, 139 N. C., 535, and Supply Co. v. Finch, 147 N. C., 106. ’In our opinion, this case falls within the last class. There is no evidence of benefit to the intestate, and while the jury would have been justified in finding from the evidence [559] tbat be promised to pay, it is not sufficient to sustain a finding tbat it was more than a promise to pay tbe debt of Cook, for wbicb be (Cook) remained liable. Tbe verified account and tbe evidence of tbe plaintiff were competent to prove tbe indebtedness of Cook, as neither involved a transaction or conversation witb tbe deceased, and there would be error in their exclusion, wbicb would entitle tbe plaintifE to a new trial, if there was evidence of a valid promise of tbe intestate to pay. It was because bis Honor thought there was no such evidence tbat be ruled as be did, and we concur in bis opinion. Tbe definition of a promise to answer for tbe debt 'of another, wbicb is not enforcible, adopted in our Court and applicable here, is: “An undertaking by a person not before liable, for tbe purpose of securing or performing tbe same duty for wbicb tbe party for whom tbe undertaking is made continues liable.” Sheppard v. Newton, supra. Tested by this rule, we think tbe action cannot be maintained. Tbe account began on 22 February, 1906, and ended 27 March, 1907. Tbe witness for tbe plaintiff, Bryant, testified, tbat about tbe time of tbe last date (27 March, 1907) tbe plaintiff told him not to let Cook have any more goods without a written order from Powell, and tbat Cook bad no credit at tbat time. Tbe inference is that Cook bad credit prior to tbe time, and no goods were afterwards sold to him. It is true tbat same witness also said tbat for all goods sold to Cook, credit was extended to Powell; and this would be entitled to great weight if be bad stated something said or done by Powell authorizing tbe extension of credit. A similar statement was made by a witness in Garrett-Williams Co. v. Hamill, 131 N. C., 59, and was held insufficient to charge tbe promisor. Again he says, in July, 1906, he beard Powell tell the plaintiff to let Cook have goods, and be would see tbat they were paid for. He does not state whether or not any goods were sold to Cook at tbat time, and so far as we can see, tbe promise related to a single transaction, and there is no evidence tbat it is embraced in tbe account sued on. [560] We would not be justified in giving sueb a promise both a retrospective and prospective construction, to include the part of the account before the promise and that part made after it. The evidence of the witnesses Brewer and Bishop does not show liability on the part of the intestate. The most material statement made by either is by Brewer: “That in March, 1906, he was at Powell’s house and saw some one going out the gate, and that he asked Mr. Powell who it was, and he replied that it was Charlie Peele, who had been to see him about Cook’s account, and that he told him that it was all right.” We will assume that “him,” as last used, applies to Peele, although it is not certain; but, if so, it was “Cook’s account” that was all right, and there is no suggestion in the evidence that Cook was not liable therefor. Suppose he had said, “Cook owes Peele an account, and I have promised to pay it.” No one would contend that this would create a legal liability, and the evidence is not as strong as this. The action is against the estate of a deceased person. The intestate lived one year and eight months after the last item in the account, and no action was instituted against him during 'this period. The defendant administratrix has no personal knowledge of the transactions, and death has destroyed any opportunity of replying to the evidence of the plaintiff. Under these circumstances the evidence should be carefully examined, and if it does not conform to the requirements of the law, it should be so declared. The ledger and day-book of the plaintiff were properly excluded, as they were mere declarations of the plaintiff in his own interest. Bank v. Clark, 8 N. C., 36; Bland v. Warren, 65 N. C., 374; Dyeing Co. v. Hosiery Co., 126 N. C., 294. We find No error.