36 N.J.L. 323 | N.J. | 1873
The opinion of the court was delivered by
One of the important objects of the statute of frauds is to prevent ony one from becoming bound for the debt of another, unless a written certificate, duly signed, of such obligation, can be produced. The wisdom and practical value of this enactment have never been denied, hut the difficulty has been to discriminate between such undertakings as are primary in their nature, and such as are secondary, that is in aid of the liability of some other .party. Many of the judicial decisions are in conflict on this
The principle is clearly exemplified by a long series of decisions. Among these may be mentioned the case of Fish v. Hutchinson, 2 Wil. 94. The plaintiff had sued a third person for a debt, and the defendant, in consideration of the staying of such action, promised to pay the money owing. Here was obviously a good consideration for the promise, as the suspension of the action was a loss to the promisee; nev
Many other decisions of the same complexion might be vouched in support of the principle thus illustrated, but I shall not cite them, as they can be very readily found by a reference to any of the ordinary text books. The two examples which have been presented, show clearly that a consideration of mere detriment to the promisee,-when the undertaking is to pay the debt of another, and the original obligation to pay such debt continues, will not take such promise out of the reach of the statute.
But a citation or two from the obverse line of cases, where it has been held the statute was inapplicable, will serve further to elucidate the rule already propounded. In this class, Wiliams v. Leper, 3 Burr. 1886, is a leading case. The plaintiff, as landlord, was about to distrain for rent certain goods in the possession of the defendant, who was a broker employed to sell the goods; and the latter promised the landlord to pay the rent if he would abstain from proceeding. This undertaking was held to be valid on the ground that the broker, being ,in possession and having a personal interest to protect, was moved to enter into the agreement by these considerations. The theory put in force was that the promise proceeding from such a motive, personal to the promisor, was original and not collateral. The same reasoning led to a similar result in Johnson v. Gilbert, 4 Hill 178. The facts were, the plaintiff had paid a debt for the defendant, and the latter transferred to him a note of a third party with a guaranty
These authorities sufficiently explain the application of the rule above defined, that the promise which is incidentally to discharge the debt of a third party in order to be without the statutory provision, must not only have a new consideration to support it, but such consideration must so move to the promisor as to make the transaction a matter of personal concern to himself. In this way only can it be made an original and substantive assumption.
Under the operation of this rule the correctness of the ruling in this case at the circuit becomes clearly indisputable. The defendant had no interest whatever in the debt which he agreed to pay. The entire consideration of the promise was the relinquishing of the lien by the defendant, and it has been shown that such a detriment, although a good consideration to support an undertaking, is not such a one as will remove the transaction to a position not reached by the statute. The non-suit must stand.
It is proper to remark that the rule above adopted is not applicable to that class of affairs where the effect of the new promise is to extinguish the liability of the original party before the obligation of the new promise attaches. As in case of a promise to pay the debt if the promisee will discharge the primary debtor from a capias ad respondendum. In such event the discharge from the writ by operation of law, destroys the debt, so that there is nothing to which the new assumption can stand as collateral. In cases of this class it has been repeatedly decided that the statute did not apply. Goodman v. Chase, 1 B. & Ald. 297; Fitzgerald v. Dressler, 7 C. B. (N. S.) 374; Kelsey v. Hibbs, 13 Ohio (N. S.) 340; Butcher v. Stewart, 11 M. & W. 857 ; Meridan Britannia Co. v. Zingsen, 48 N. Y. 247.
Cited in Wills v. Shinn, 13 Vr. 138; Blackford v. Plainfield Gas Light Co., 14 Vr. 438.