219 Ill. 79 | Ill. | 1905
delivered the opinion of the court:
Miller Bros, held no fund belonging to Frink and were not indebted to him. If Frink, under these circumstances, had orally requested Miller Bros, to pay his debt to Chicago Heights Lumber Company, and Miller Bros, had verbally promised the company to do so, the promise would have been within the Statute of Frauds. Does the fact that Frink’s request to Miller Bros, to pay his debt was in writing and that the written request was left with appellee when he paid a part of the debt and verbally agreed to pay the remainder, make a material difference ? We think not. In either event Miller Bros, could recover from Frink any amount paid in pursuance of his request. The only difference is, that in one instance the evidence of Frink’s request lies in parol while in the other it is in writing. In either case the promise to pay Frink’s debt is verbal and the Statute of Frauds presents a complete defense.
The only case to which our attention has been called, where, upon the oral acceptance of such an order, the writing itself was left with the acceptor, is that of Louisville, etc. Railway Co. v. Caldwell, 98 Ind. 245. The views there expressed by the court of last resort of the State of Indiana are consonant with the conclusion reached above.
If the written request of Frink be regarded as a bill of exchange the result would not be different, as the verbal acceptance by the drawee of a bill of exchange, who holds no funds of the drawer, is no more than a parol promise to answer for the debt of another. Browne on Frauds, 174; 2 Rob. Pr. 152; Quinn v. Handford, 1 Hill, 84; Pike v. Irwin, 1 Sandf. 14; Manly v. Grogan, 105 Mass. 445; Plummer v. Lyman, 49 Me. 229; Wakefield v. Greenhood, 29 Cal. 600; Walton v. Mandeville, 56 Iowa, 597.
The judgment of the Appellate Court will be affirmed.
Judgment affirmed.
