The promise of defendant to pay or become responsible for Williams' debt, if any such promise there was, was void under the Statute of Frauds.
" In the following cases every agreement shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration, shall be in writing, and subscribed by the party charged therewith." (Art. 2.) " Every special promise to answer for the debt, default, or miscarriage of another." (Comp. Stat. Cal. p. 200, Sec. 12, " An Act concerning Fraudulent Conveyances and Contracts." )
Inthe case at bar, no such expressed consideration appears. Even taking the testimony of Williams as true to the letter, the promise is void.
(Kent's Com. 123; Manrow v. Durham, 3 Hill, 384; Wain v. Walters, 5 East's Rep. 10; Sanders v. Wakefield, 4 Barnw. & Ald. 595; Jenkins v. Reynolds, 3 Brod. & Bing. 14.) Says Chitty, Contracts, p. 507: " Where there is no previous liability, but the promise of one is the inducement to and chief ground of the credit given to another, such promise is also a collateral undertaking, and within the statute. (Elder v. Warfield, 7 Har. & J., 391, etc., etc.)
A promise to pay the debt of another is within the statute even though made on a sufficient consideration. (Simpson v. Patten, 4 John, 422; Gallagher v. Brunel, 6 Cowen, 346; Chandler v. Davidson, 4 Black, 367.)
The same is true though made before delivery of goods. (2 Stephens' Nisi Prius, 1284; Jones v. Cooper, 1 Com. 227.)
Kent, C. J., says, (Com. 3 vol. p. 123): " If the whole credit be not given to the person who comes in to answer for another, his undertaking is collateral and must be in writing." (See, also Leland v. Creyon, M'Cord, 100; Matson v. Wheream, 2 J. R. 80; Anderson v. Hayman, 1 H. Bl. 120; Buckmyr v. Darnall, 2 Ld. Raymond, 1095: Smith's Mer. Law, 535; 1 Saunders, 211, a, note 5th ed.; Chitty Contracts, 507.)
The Judge in this case admits that there was " a subsisting liability against Williams." But adds that that fact " would not, according to the case of Farley v. Cleveland, 4 Cowen, 432, and the cases there cited, make any difference," " the liability of the defendant being founded on a new and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the promisor, either from the plaintiff or the original debtor."
The case of Farley v. Cleveland is as follows: " Farley sues Cleveland, delaring, specially, that one Moon, on the 22d November, 1815, gave the plaintiff a promissory note with interest payable first of June thereafter. That on January 1, 1817, Cleveland, on consideration of fifteen tons of hay, (value $ 150,) sold and delivered by Moon to him, at his instance, promised to pay the note of Moon to Farley." Held, Cleveland was liable to Farley, though Moon's liability continued, Cleveland's promise being " founded on a new and originalconsideration."
The case at bar is totally different from that of Farley v. Cleveland, and wholly wanting in all the elements relied on by Judge Shattuck, to bring it within the ruling of that case.
The alleged promise of defendant, if any such were made, was not founded on any new or fresh consideration, moving from either plaintiffs, or Williams to Walton, nor does it appear that Walton derived any benefit whatever from it.
JUDGES: Field, J., delivered the opinion of the Court. Terry, C. J., and Burnett, J., concurring.
OPINION
FIELD, Judge
The only question in this case for our consideration is whether the promise of the defendant is within the Statute of Frauds. The recollection of Williams of the language used by the defendant is not very clear. He does not pretend to give the precise words, and a slight mistake in this respect might have the effect of changing a promise, intended to be conditional and collateral, into an independent and original undertaking. But if we assume that the language is accurately repeated by the witness, it is still insufficient to fasten a liability upon the defendant under the statute. It shows only a conditional promise, dependent upon the default of Williams, a promise as surety or guarantor of his contract. And if there be any doubt as to its import, we must look to all the circumstances of the case, to ascertain the intention of the parties at the time. The refusal of the plaintiffs to produce their books at the trial, after notice from the defendant, the form of the receipts for the money paid on account, and the affidavit in the attachment suit, lead to the conclusion that the sale was made to Williams, and the promise of the defendant was intended to be conditional and dependent upon his default, and was so understood by the parties. It is difficult to perceive in what manner the plaintiffs can avoid the effect of their affidavit in the attachment suit, as evidence that the contract of sale was made with Williams. No explanation of this affidavit is contained in the record, and the plaintiffs will hardly object that it is taken as true.
It is not clear whether the promise of the defendant preceded or was subsequent to the contract with Williams. If it preceded, or if it was concurrent with the principal contract, and constituted the main inducement to the credit given by the plaintiffs to Williams, it would be binding upon the defendant at common law. The consideration moving between the creditors, the plaintiffs and the principal debtor, Williams, would be sufficient, and it would be immaterial whether the promise was direct and absolute, or conditional and dependent. But, by the twelfth section of our Statute of Frauds, which is borrowed substantially from the fourth section of the English statute of 29 Car. 2, every special promise to answer for the debt, default, or miscarriage of another is void, unless some note or memorandum thereof, expressing the consideration, be in writing, and subscribed by the party to be charged thereby; and the special promise in this case being to answer for the default of Williams, is directly within the provisions of this section, and is of course void. If the promise of the defendant was subsequent to the principal contract, and made as an inducement to its performance by the plaintiffs, it would be equally within the statute. The consideration of the original contract would not attach to the subsequent promise. (Leonard v. Vredenburg, 8 John. 29.)
In Packett v. Bates, (4 Ala. 390,) the plaintiff had agreed with one Kelly to construct for him a house at the usual rate of charges. While the work was progressing, but before its completion, Kelly left the State, and went to Louisiana. The defendant then verbally promised the plaintiff to pay him, if he would proceed and complete the work. It was held that the promise was collateral, and within the statute. The consideration consisted wholly in the performance by the plaintiff of his antecedent contract, and did not arise out of any new and distinct transaction.
It is contended by the appellants, that, admitting the sale and delivery of the brick were made on the credit of Williams, the defendant is still liable upon his promise, because the real and immediate benefit from the transaction was to be received by him, inasmuch as the brick were intended for the construction of his building.
It is well settled, that wherever the leading and main object of the promisor is not to become surety or guarantor of another, but to subserve some purpose or interest of his own, his promise is not within the statute, although the effect of the promise may be to pay the debt or discharge the obligation of another. The general rule is thus stated in Nelson v. Boynton (3 Metcalf, 396): " The terms original and collateral promise, though not used in the statute, are convenient enough to distinguish between the cases where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own. The former, whether made before or after, or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object on the part of the promisor." (Alger v. Scoville, 1 Gray, 391; 2 Par. on Con. 306, and cases there cited.)
The correctness of the general rule is unquestionable, but it is difficult to see its application to the present case. There is no evidence that the building could not have been erected, and the requisite brick obtained by the contractor, if the defendant had made no promise, or that brick equally good could not have been obtained elsewhere, or that it was of any particular benefit to the defendant that the contract with Williams should have been carried out at all; and even had circumstances of this nature appeared in the case, the question would still have arisen, as to what was the leading object and purpose of the promise. The interest which a promisor has in the performance of a contract by another, or the benefit which he may derive thereby, cannot determine his liability. That liability arises from the character of the promise, and the interest in the principal contract, or the benefit to be gained by its performance, become matters of consideration, only as they may serve to determine that character.
In Doyle v. White (26 Maine, 341), the plaintiff had agreed to deliver to a builder stone at a stipulated price, to be used in a dwelling-house, but, previous to the delivery, he informed the defendant of his determination not to deliver the stone upon the credit of the builder; and the defendant thereupon said to the plaintiff: " You bring the rock, and I will see you paid for it." It was held that the promise was within the Statute of Frauds, and not binding upon the defendant; and that any expectation or hope of profit from the sale of goods by the defendant to the builder, in consequence of his proceeding to construct a house, on being furnished with the rock, did not constitute sufficient consideration for the promise.
We are of opinion that the new trial was properly granted, and the order is affirmed.