48 So. 669 | Ala. | 1909
The plaintiff (appellee) as a witness thus states the alleged engagement between himself and the defendant, Byrd, upon which is predicated his complaint, composed of a common’ count and one averring liability arising from the special promise: “I held a note and mortgage on Mrs M. J. M. Lewis, executed by her and her husband to me for a loan of money to Mrs. Lewis, executed on the 6th day of March, 1906, for $120.70 and due the 1st o£ October, 1906.” After telephonic inquiry and negotiations, there being no writing in the premises, between plaintiff and defendant, in which plaintiff declared that he could not wait on the mortgagees another year, plaintiff, testifying, proceeds: “* * # Defendant resumed his conversation with me, * * * and said that if I could wait on the Lewises for said amount until -January 1, 1907, and look to the Lewises for the interest between October 1st and January 1st, he would taken the matter up on January 1st. I then said, ‘On your promise to pay it on January 1st I will wait.’ To this defendant said to me, ‘All right,’ and we each rang off. * * *” There was testimony introduced the tendency of which was to show that defendant, prior to the quoted agreement, induced Mrs. Lewis to pay him $75 on her indebtedness to him on the assurance that he would help her pay the debt to plaintiff when it matured. The court, however, at the instance of the defendant, instructed the jury specially that they
The only question, in this aspect of the case, is: Was the agreement detailed by plaintiff within the- statute; or, more minutely stated, was it a new aud independent agreement, between plaintiff and defendant, based upon a new and independent consideration, to which the payment of the Lewis debt was a mere incident? If it was not a new and independent agreement, the statute is offended in the failure to reduce it to writing as the statute requires. It is perfectly evident that the Lewis obligation was not discharged, or the debtors released, in any sense; for the agreement detailed prescribed that plaintiff should look to the debtors for the interest on the debt in the interim between October 1st and January 1st. And it is just as evident that the only consideration to support the agreement, between plaintiff and defendant, to pay the Lewis debt, was the forbearance by plaintiff to enforce payment of his debt against the debtors until January 1st. That such a forbearance is a consideration capable of supporting a contract to pay another’s debt, and also that a contract to pay another’s debt importing that consideration only is within, and, if not in requisite writing, condemned by, the statute of frauds, was expressly decided by this court in Westmoreland v. Porter, 75 Ala. 452. Therein it is said: “While
As indicated, we taire no- account, in attaining the con. elusion stated,' of the alleged promise, both affirmed and denied in the testimony, of the defendant to Mrs. Lewis. See Hilton v. Dinsmore, 21 Me. 410; Browne’s St. Frauds, § 187, § 212, and notes.
The judgment is reversed, and the'cause is remanded.
