Wilkie v. Marshall

The opinion of the court was delivered by Garrison, J. Woodruff’s promise was that if his client failed in his appeal he, Woodruff, would pay the money ob [274] tained from the plaintiff to do the printing required on such appeal. There was no objection to the competence of this testimony and no point is made that the promise thus proved lacked consideration. The appellant was nonsuited solely upon the ground that the promise thus proved was to pay the debt of another and was not in writing. Two questions that are not raised and hence will not be considered are— first, whether the notes signed by Woodruff do not satisfy the statute of frauds, and second, whether the action in the court below being on the notes should- have gone off on the parole promise of the endorser. Upon the case made in the trial court and presented and argued here the sole question is whether the promise proved by the oral testimony was within the statute of frauds. Upon this point we think it clear that the promise proved at the trial was not within the statute, i. e., that it was an original promise as distinguished from a collateral one, and that it was none the less original because conditional. The only condition that would render such a promise collateral would be that Woodruff was to pay in case Wolfinger did not. That, however, was not the condition. It was not Wolfinger’s failure to pay his debt but his failure to succeed in his appeal that constituted the condition upon which Woodruff was to pay. When Wolfinger failed in his appeal the sole condition upon which Woodruff’s promise hinged was fulfilled. Such a promise was an original one upon the strength of which credit -was given. This is the test to be applied. The fact that Wolfinger on his individual undertaking was also liable for the debt is not significant if his failure to pay the debt was not the event upon which Woodruff’s liability was conditioned. If Wolfinger had succeeded in his appeal Wood-ruff would have been entirely released from his promise as proved by the oral testimony and the fact that Wolfinger did not pay his debt would have been an immaterial circumstance as far as Woodruff was concerned, which would not be the case if Woodruff’s promise to pay the debt had been collateral to that of Wolfinger. The case is as clearly without the statute as are those in which the direct promise is to in [275] demnify another promisor. Warren v. Abbett, 36 Vroom 99; Apgar v. Hiler, 4 Zab. 812; Chapin v. Merrill, 4 Wend. 657; Tighe v. Morrison, 116 N. Y. 263; Jones v. Bacon, 145 Id. 446; Alger v. Scoville, 1 Gray (Mass.) 391. It was error, therefore, to direct a nonsuit upon the ground stated, and no other ground has been suggested for its support. Because of this trial error there must be a venire de novo to which end the judgment of the District Court is reversed.