30 Vt. 641 | Vt. | 1858
The opinion of the court was delivered by
The first question raised by the defendant upon the exceptions in this case, is, that there is a fatal variance b 'tween the allegations in the declaration, and the proof given upon the trial.
It is alleged in the declaration, that the plaintiff had instituted a suit in his name against one Brown, and had caused a large lot of mill logs to be attached thereon, as the property of Brown, and had caused Jairus Rood and Daniel Hinkson to be summoned as Brown’s trustees. Up-on the trial, it appeared from the evidence that the suit was brought in the names of the plaintiff and A. A. Cross, who had formerly been co-partners, but that at the time the suit was commenced, the plaintiff was the sole owner of the debt.
The defendant further claims that the trustees could not legally have been made chargeable in that proceeding, if it had been continued. Whether this is so or not, is a question that we think can not be inquired into in this case. The plaintiff had summoned them as trustees of Brown, and claimed the right to make them chargeable. This claim he abandoned, and discharged the trustees in consideration of the promise on the part of the defendant, and this, we think, is a good consideration for the promise of the defendant, without going into the inquiry as to what might have been the ultimate result of those proceedings.
The objection that the plaintiff did not show a discharge of the trustees, or a release of the attachment of the logs, can not avail the defendant here, as, under the charge of the court, the jury must have found the fact that the plaintiff did discharge both the property and the trustees, according to the terms of the agreement.
The case further shows, that on the writ in favor of L. & A. ACross against Brown, the plaintiff had caused to be attached one hundred and fifteen mill logs, subject to two prior attachments, one
The practical operation of such a rule, as remarked by Chief Justice Redfield, in Lampson v. Hobart’s Estate, 28 Vt. 697, would “ virtually repeal the statute.” The promise must not only be based on a valuable consideration, but it must be a eonsidei’ation moving between the promissor and promissee, and from which the promissor is to derive some actual or anticipated benefit, in view of which the promise is made. When this is the case, it becomes a
If its effect is to discharge the original liability, then it is not a promise to pay the debt of another, but it is a promise, by which the debt of another is in fact paid. All the authorities agree that such a case does not come within the statute.
It is apparent that unless the statute is to be judicially repealed, the consideration for the promise must be of a peculiar character, for if the promise is without consideration, it is void at common law; if it is a promise to pay the debt of another, no action can be maintained upon it under the statute, unless it is in writing; if then it is taken out of the statute, it must be by force of the peculiar nature of the consideration on which it is based. That'consideration must be not only sufficient to support the promise, but of such a nature as to take the promise out of the statute; and that requisite, we think, is to be found in the fact that it operates to the advantage of the promissor, and places him under a pecuniary obligation to the promissee, entirely independent of the original debt; which obligation is agreed to be discharged by paying that debt. The contract may be of such a character that the payment will impose no legal
In the case under consideration, the discharge of the trustees, and the release of the property from attachment, was a sufficient con ideration to support the promise. Was it then of such a character as to take the contract out of the operations of the statute?
We think it is appai ent from the fact set forth in the bill of exceptions,. that this contract was entered into prior to the sale of the logs on the executions. It is stated to have been made on the same day, and to suppose it to have been made after the sale, would be to suppose that the parties made a contract, as to these logs, which both of them knew to be an idle ceremony. The object of the defendant in making this promise, evidently, was to remove the claim of the plaintiff upon these logs, and upon the trustees, that he might become the purchaser of the logs, without competition on the part of the plaintiff, and that Rood and Hinkson should be released from the embarrassment of the trustee process, so that they might continue to operate the mill. The advantage to be derived by the defendant from this arrangement, was the true consideration of his promise. The original debtor was no party to it, but the contract was entirely independent of him, and upon a consideration wholly disconnected from his debt. The fact that he is to derive a benefit from the performance, of the contract, does not bring it within the statute. The contract must stand on the same ground as though it was for the payment of one hundred dollars absolutely, without any reference to its application on the debt of Brown.
The result is, the judgment of the county court is affirmed.