6 Va. 85 | Va. | 1835
Upon the points ruled by the circuit court, and therefore the only points presented for our consideration, I strongly incline to think the judge decided correctly.
Let us see now, whether the paper relied on as a promise, was admissible? And first, did it, either taken by itself, or in connection with the other evidence, amount to a promise ? We must recollect, that there is nothing technical either about this action of assumpsit, or in the word promise. It is a word in free and common use. I consider that any writing signed by A. and addressed or given to B. by which the writer declares his willingness, assent or intention, to pay B. a certain sum of money, is a promise to pay that sum, whatever be the form of words in which it is cloathed: and where the words of the party promising are at all doubtful, the court will take into consideration the situation and circumstances of the parties, to enable it to judge of their respective intentions and understanding, at the time of the agreement made; Fell on Merc. Guar. 39. Keate v. Temple, 1 Bos. & Pull. 158. And in Russell v.
But it was objected, that it was not properly do-scribed in the declaration. That describes it, in several counts, as a promise to pay the 500 dollars, in part of the debt due from Gregory to Henley and secured by deed of trust; and, surely, this is accurately enough pleaded, to justify its admission as the promise laid in those counts. The declaration, to he sure, alleged this promise to have been made on a consideration which does not expressly appear on its face; but this was not stated as forming any part of the promise itself, but merely as the moving cause, the ground of support to the promise, and surely could furnish no reason for excluding from the jury, the promise which was well described. We must remember that this was a question, not upon the weight, but the admissibility of the paper.
If it were necessary to discuss the question of consideration here, it would be sufficient to say, that all admit it to be a well settled principle of the common law, that to support every engagement not under seal, there must he a sufficient consideration. And I think, there are more than one, to support this promise; 1. that stated in the declaration, the forbearance to proceed on the deed of trust, within the sixteen months, which, though not expressed, is strongly implied by the nolo itself, and made still more clear by the explanatory facts in the case; and 2. the direct interest in the
There is one more objection to this note, which I shall consider, but more briefly than I could have wished, but for the length to which these remarks have already grown. It is said to be an undertaking for the debt of another, and therefore void by the statute of frauds, because the consideration of the promise is not expressed upon its face. The english statute of frauds was first adopted into our code in 1787, more than a century after its birth. It was not till 1804 that the case of Wain v. Warlters was decided, in which it was held, that not only the agreement to pay the debt of another, but the consideration, as an essential part of that agreement, must be stated on its face. That this was a new construction, then first given to a statute which had been more than a century in operation, is clear from the fact, that neither the bar nor the bench cited any former decision in support of it. The judges rested it entirely upon the technical meaning of the word agreement, and the mischiefs meant to be prevented by the statute. The case seems to have given both surprize and dissatisfaction, as we see by the frequent attacks upon it made in subsequent cases, and the seeming evasion of it, in some, by the court. Indeed, lord Eldon (a judge second to few in law learning), has in the court of chancery, positively denied its correctness, and in one case overruled it. In ex parte Minet, he says—“ There is a variety of authorities directly contradicting the case in the king’s bench, which is a most important case in its consequences •, for the undertaking of one man for the debt of another, does not require a consideration moving between them.” Again, in ex parte Gardom, he says—“ The first objection, viz. that which Wain v. Warlters was cited to support, is of great importance. Until that case was .decided some time ago, I had always taken the law to
The main question is, Whether our statute of frauds makes it essential to the validity of a written promise to pay the debt of another, that it should express, on its face, the consideration on which it is founded ? I am clearly of opinion that it does not. The court of king’s bench in Wain v. Warlters, decided that, under their statute of frauds, the consideration must be expressed in the writing declaring the promise. But the english statute is different from ours. For although ours is, in general, almost a literal transcript from the
Then, as to the other points in the cause. On the trial, the defendant moved the court to exclude from the jury, the written promise made by Coigin to pay the debt of Gregory, on the ground that the promise did not proceed upon the request of, or any consideration moving from Gregory to the defendant. Nothing can be clearer than that neither of these grounds was sufficient cause for excluding the promise as evidence. No request from Gregory was necessary. It was surely competent to Coigin to engage to pay the debt due by Gregory, and such engagement, even although unknown to Gregory,
But it was contended, that if the court ought not to have excluded the evidence, for either of the causes alleged by the defendant, yet, as it was objected to, the court should have informed the jury, that the promise was of no avail, unless there should be proof of its acceptance by the plaintiff. I cannot think so. The evidence was not objected to on that ground, and we may fairly infer from the absence of such objection, that acceptance was proved. Every body knows, that what may be intended as a promise, is in truth no promise, until it is accepted. Until then, it is a mere declaration of intention. In cases of this sort, the evidence consists of various links, and these links must, of necessity, be exhibited successively and in detail. If the plaintiff fail to exhibit airy one of them, it is the right and the duty of the defendant, to demur to the evidence, or to move the court to instruct the jury, that the action cannot be sustained, unless they shall think that the whole chain of evidence is completed. If, however, he fail to demur, or to move for such instruction, but objects only to a part of the evidence, on some insufficient ground, it is not proper either for the court trying the cause, or the appellate court, to treat such partial objection, as a demurrer to evidence. In such a case, the proper course of the defendant, is plain and obvious. If there be no evidence of acceptance, he should demur, or move the
These remarks apply also to another objection, which was made in the argument, to the promise given in evidence—that it was not in fact a promise, but only a proposition to enter into an arrangement on the subject.
Even if it were admitted, that the words of the writing were somewhat doubtful or ambiguous, in this respect, that is no valid objection to its introduction as evidence, since it is competent to the party to remove such doubt or ambiguity, by other evidence as to the situation and circumstances of the parties, at the time the writing was executed. And, in this view of the subject, I think the deed of trust, given to Colgin, excepted to in the court below, was properly permitted to go to the jury. I think the judgment should be affirmed.
Tucker, P. concurred. Judgment affirmed.