| Ala. | Dec 15, 1884
— This case appears to have gone off in the court below on the defense of the statute of frauds. The testimony tends to show, that, another Campbell, father of the one sued, was indebted to Wooten, and that the contract sued on was executed by Perry and the younger Campbell, in payment and substitution of the debt of the elder Campbell. If this be so, and if, by virtue of the new agreement, the debt of the elder Campbell was extinguished, or ceased to be a binding, subsisting indebtedness, then the substituted contract became an original undertaking based on a sufficient consideration, and the statute of frauds has nothing to do with the ease; and if on such surrender, or cancellation of the debt of the elder Campbell, Perry signed the new agreement as principal, and Campbell, as part of the agreement, signed contemporaneously as his surety, then the consideration on which Perry’s promise was based, equally upheld that of the younger Campbell, his surety. — Rutledge v. Townsend, 38 Ala. 712; Underwood v. Lovelace, 61 Ala. 155" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/underwood-v-lovelace-6510161?utm_source=webapp" opinion_id="6510161">61 Ala. 155; Dunbar v. Smith, 66 Ala. 490" court="Ala." date_filed="1880-12-15" href="https://app.midpage.ai/document/dunbar-v-smith-6510782?utm_source=webapp" opinion_id="6510782">66 Ala. 490; Thornton v. Guice, 73 Ala. 321" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/thornton-v-guice-6511632?utm_source=webapp" opinion_id="6511632">73 Ala. 321.
Under the principles above declai-ed, ebai’ges numbered two and three ought to have been given.
The testimony tends to show, that Wooten, the payee of the contract sued on, executed the paper declared on, so far as Campbell’s name appears thereto. Campbell filed a sworn plea, denying its execution. We have shown that the cancellation of the elder Campbell’s indebtedness would uphold the promise of Perry, which it is not denied he made. We have shown, also, that this consideration would equally uphold a promise made by Campbell as his surety. But, to have that effect, Campbell’s promise must have been in the form of a co-maker of the contract, signed thereto before it was consummated by delivery. — Jackson v. Jackson, 7 Ala. 791" court="Ala." date_filed="1845-01-15" href="https://app.midpage.ai/document/jacksons-admr-v-jackson-6502522?utm_source=webapp" opinion_id="6502522">7 Ala. 791. Any contract not so signed by him, or by his authority, would not bind him. The testimony tends to show, that Wooten, the promisee, signed the name of Campbell to the contract declared on, and which purports to be signed by Campbell’s mark. Can a promisee become the agent of the promisor for such a service ? We think not.— Wright v. Dannah, 2 Campb. 203; Rayner v.
Reversed and remanded.