Beasten v. Hendrickson ex rel. Hendrickson

Robinson, J., delivered the opinion of the Court. The appellee, a married woman, sues the appellants, on their promissory note, of five hundred and fifty dollars, payable to her one year after date. Beasten, one of the defendants below, sets up the following defence : Being an endorser on a note of the appellee’s husband, and feeling some uneasiness about its payment, he called on^he appellee, for the purpose of making [616] some arrangement about its settlement. After some conversation, in which he expressed his doubt as to the ability of her husband to pay the note, and that his failure to do so, would leave him, Beasten, in a critical condition, the appellee said, “You hold on to that money, and I will see it paid out of that money which you hold, if John don’t pay it.” That the defendant Beasten, went away satisfied, and the appellee and her husband shortly afterwards left the State, and when the husband’s note became due, he, Beasten, paid it out of the money due by him on the note to the appellee. This defence rests entirely upon the evidence of Beasten, and is contradicted in all material points by the appellee. Conceding, however, for the purposes of this case, that the agreement made with the appellee is such as is sworn to by the defendant, it is liable to two objections. In the first place, it is a mere voluntary parol agreement, made without any consideration to support it; and secondly, it is a promise to pay the debt of another, not reduced to writing, and therefore not binding upon her. Wyman vs. Gray, 7 H. & J., 415 ; Elliott vs. Giese, 7 H. & J., 475 ; Nabb vs. Koontz, 17 Md., 283; Rider vs. Riley, 22 Md., 540 ; Hutton vs. Padgett, 26 Md., 231; Thomas vs. Delphy, 33 Md., 373 ; Frank vs. Miller, 38 Md., 450. In order, however, to exempt it from the operation of these well settled rules of law, the appellants contend that the agreement is to be construed as a dedication of a particular fund in the hands of Beasten to the payment of a specified debt, and that the subsequent appropriation by him of this fund in "pursuance of such agreement entitles him to set off the amount thus paid against his note to the appellee. It is a sufficient answer to say, that at the time of this alleged agreement there was no fund in the hands of Beasten belonging to the appellee, for his note to her was not [617] then due, nor in fact was the note of the husband, on which he was endorser, even due; and he could not, therefore, have known whether he would be obliged to pay the same. Eo new liability was incurred by the defendant, Beasten, in consequence of this agreement. According to his evidence the language of the appellee was, “Hold on to that money, I will see you paid out of the money which you hold, if John don’t pay it.” In any light in which such an agreement may be viewed, it is but a mere promise on the part of the appellee to pay the debt of her husband, provided he did not pay the same, and comes, therefore, directly within the operation of the Statute of Frauds. (Decided 14th June, 1876.) Finding no error in the rulings below, the judgment will be affirmed. Judgment affirmed.