52 Wis. 638 | Wis. | 1881
Assuming that the defendant promised orally, in May, 1876, to pay the indebtedness of Harrington to the plaintiff, and assuming also that the plaintiff could have enforced a lien upon the logs mentioned in the complaint, to the amount of such debt, at any time before the first of June following, the question to be determined is, whether such oral promise is void by the statute of frauds. The learned circuit judge refused to instruct the jury that such promise is void under the statute, and instructed them as follows: “ If you find
Under repeated decisions of this court, the alleged promise is within the statute of frauds unless it was founded “ upon a new and independent consideration passing between the newly-contracting parties, and independent of the original contract.” Emerick v. Sanders, 1 Wis., 77. In Dyer v. Gibson, 16 Wis., 557, the rule is laid down, that “the promise of one person, though in form to answer for the still subsisting debt of another, if founded upon a new and sufficient consideration moving from the creditor and promisee to the promisor, and beneficial to the latter,” is not within the statute; and Dixon, C. J., proceeds to say that “ the distinction is between cases where the person promising has for his object a benefit accruing to himself, in which the original debtor has no interest, and from which he derives no advantage, and cases where his primary and leading object is to become surety for the debt of another without benefit to himself, but for the exclusive advantage of the other parties to the contract.” Page 370. In Young v. French, 35 Wis., 116, the present chief justice states the distinction thus: “Where the party promising has for his object some benefit and advantage accruing to himself, and on that consideration mates the promise, this distinguishes the case of an original undertaking from one within the statute.”
In the present case we have assumed that at any time before June 1, 1876, the plaintiff might successfully have commenced.
In this condition of the pleadings and evidence, it is impossible to hold that the object of and consideration for the alleged promise of the defendant was that the plaintiff should not enforce a lien on the logs. The oral promise is an undertaking to answer- for the debt of another, and there is no proof tending to show the existence of any fact which takes it out
It appears that the parties had an interview, after June 1, 1876, concerning Harrington’s debt. The plaintiff testified that in that interview the defendant promised to pay the debt the nest fall if he had anything to pay with, but refused to give his note therefor. The defendant denied that he made such promise. It is unnecessary to consider the effect of this testimony further than to say that the conversation occurred after the plaintiff’s right to a lien had expired by lapse of time (Tay. Stats., 1769, § 27); and it is not claimed that there was any other consideration for such alleged promise.
The view we have taken of the case renders it unnecessary to consider other questions raised by the exceptions and argued by the learned counsel.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded for a new trial.