Graham v. Mason

Green, J. This was an action in assumpsit brought in the Richland Circuit Court by the appellee against the appellant. The cause of action is alleged in the declaration to he substan tially as follows in first count: That on September 24, 1880, said John W. Mason sued out a writ of attachment from the Circuit Court of Jasper county against Wm. Frazier & Co. for the sum of 8275; that in December, 1880, the writ was duly levied on the property of defendants; that at the time of said levy Frazier & Co. were employed in and were constructing the Danville, Olney & Ohio River Railroad, and in so doing, required the use of and were using the said property levied on, and then had Joseph Graham in their employ as a superintendent of construction ; that hy reason of the said levy and seizure of said property, said Frazier & Go. were compelled to and did temporarily suspend the construction and work on said railroad; that while said attachment suit was pending and undetermined and for the purpose of procuring further employment for himself by securing the settlement and dismissal of said suit, thereby to make the property levied on, available for use in continuing the construction of said railroad, and in consideration that Mason should dismiss his said attachment suit, Graham promised Mason to pay him, the amount of the indebtedness aforesaid, due him from Frazier & Co.; that in consideration of said promise and undertaking of Graham, Mason on December 16, 1881, dismissed his suit in attachment and thereby Graham became and was indebted, etc. The second count is substantially like the first, with an additional averment that payment to Mason was to be made when a certain amount of township bonds were issued, delivered and the money realized thereon; this declaration concluded with the usual breach, and ad damnum of $500. To this declaration, defendant below pleaded the general issue, and the Statute of Frauds, and proper replications thereto were filed by plaintiff below. By agreement the cause was tried by the court without a jury, and no propositions of law were asked to be held by the court below. The trial resulted in a finding for appellee, and a judgment thereon by the court below for $275 against appellant, who took this appeal therefrom. On the trial below, appellee offered and read in evidence, without objection, the original papers in the attachment suit of appellee v. Frazier & Co., including affidavit showing an indebtedness from Frazier & Co. to appellee for work and labor for $275, attachment bond and writ of attachment, with a levy indorsed thereon upon horses, mules, wagons, cars, tools, etc., levied upon as the property of Frazier & Co., and also the record of the final order and judgment of the court in the attachment suit, May 16, 1881, which recites, that the parties appeared by their respective attorneys, and it appearing to the court that the matters at issue in this cause have been settled by agreement, and each party is to pay one half the costs, judgment is thereupon awarded, and execution against the parties for costs due from each, and appellee also proved by oral testimony, that at the time the said levy was made Frazier & Co. were constructing said railroad, and in such work required the use of and were using the property levied on; that the property levied on belonged to said firm; that the work of constructing the railroad was suspended; that Graham, the defendant below, Avas the superintendent of construction and chief engineer of the road, and was anxious to have the work progress; that while the attachment suit of appellee against Frazier & Co., Avas pending, and, said levy not released, appellant promised appellee to pay him the amount due him from Frazier & Co., in consideration that appellee Avould settle said attachment suit and release said levy; that appellee accepted this proposition, and relying on Graham’s promise, notified his attorney in the attachment suit that the same had been settled, and directed him to dispose of the said suit accordingly, and that the amount due appellee from Frazier & Go., Avas 8275, all of which remained unpaid, and that appellee had frequently requested Graham to pay him this amount, according to his promise and before commencing suit, but Avas not paid any part thereof. We think the proof supports the first count of the declaration of plaintiff below, and he Avas entitled to recover. Various reasons are urged for the reversal of the judgment in this case on behalf of appellant, none of Avliich appear to us necessary to notice, other than the point urged, that the promise of appellant set up in said'declaration, Avas void as being Avithin the Statute of Frauds. We do not so understand it. It Avas not a promise to pay the debt of another, hut a promise to pay the amount of such debt, in consideration that the original debtors should be released from the payment thereof, and that the appellee should release the lien of a Icaw upon the debtor’s property for his debt for the benefit of appellant. It Avas an original undertaking and promise made by appellant for a sufficient consideration to pay appellee §275. In Wilson v. Bevans, 58 Ill. 232, it is said: “ If the promise is in the nature of an original undertaking to pay a debt to a third party, and is founded on a valuable consideration, received by the promisor himself, it is not within the provisions of the statute and need not be in writing to make it valid and binding. In Borchsenius v. Canutson, 100 Ill. 92, and cases cited there, this rule is stated: That where the leading object of the undertaking is to promote some interest of the party’s own, his promise to pay is not within the Statute of Frauds, although its effect is to release or suspend the debt of another; to the same effect are the cases of Clifford v. Luhring et al., 69 Ill. 401; Meyer v. Hartman, 72 Ill. 442; and Bunting v. Darbyshire, 75 Ill. 408. The finding of the court below on the evidence was right and the judgment on such finding must he affirmed. Judgment affirmed.