38 Md. 450 | Md. | 1873
delivered the opinion of the Court.
This suit was brought by the appellees upon an alleged agreement made by the appellant to pay a debt due them from Katzenberg & Co., of Selma, Alabama.
The instructions given to the jury, by the Superior Court, at the instance of the plaintiffs, in granting their
First. — Considering the case within the 4th section of the Statute of Frauds, they maintain that the paper-writing signed by the defendant and sent by him to the plaintiffs, on the 18th day of February, 1871, is a sufficient memorandum of the agreement under the Statute.
Second. — That there is sufficient evidence in the case, to be submitted to the jury to establish an original promise binding on the defendant, made upon a consideration moving to him, and thus to take the case out of the Statute. This last proposition arises on the second prayer of the plaintiffs.
First. — Treating the agreement as within the Statute, is it sufficiently evidenced by the writing relied on for that purpose ? It is as follows:
“If you will make it in 4 notes, 3, 6, 9 and 12, IluiU settle them; 2 notes due, Frank.”
It is contended on the part of the plaintiffs that this is an agreement by the defendant to pay them the amount of two notes of Katzenberg & Co., dated the 13th day of May, 1870, each for the sum of $191.37, payable to Daniel Miller & Co., one-in six, and the other in nine months after date ; provided the plaintiffs would divide the amount of the debt into four notes, payable respectively in three, six, nine and twelve months; to be signed by Katzenberg & Co., and endorsed by the defendant. So the agreement is stated in the nar. and in the plaintiffs’ first prayer.
The Statute requires, in order to charge the defendant, that the “ agreement or some memorandum or note thereof shall be in writing, signed by the party to be charged, or by some person thereunto by him lawfully authorized.” That the writing here relied on, falls far short of the requirements of the Statute, seems to us to be too plain to
To supply the defects in the memorandum, and show the subject-matter of the contract, the plaintiffs offered in evidence the two notes of Katzenberg & Co., described in the declaration ; but that was alike inadmissible; they are not signed by the defendant, nor in any manner binding upon him; no reference to them appears in the
There being no sufficient memorandum in writing to bind the defendant under the 4th section of the Statute of Frauds, the defendant’s first prayer ought to have been granted, and it was error to grant the first prayer of the plaintiffs.
Secondly. — The plaintiffs by their second prayer endeavor to take the case out of the Statute, and maintain the liability of the defendant upon the theory, that his agreement was not merely a collateral one, but an original undertaking on his part, entered into upon a new or superadded consideration moving to himself, and thus to bring the case within the principle laid down in Elder vs. Warfield, 7 H. & J., 392; Andre vs. Bodman, 13 Md., 254; and Small vs. Shaefer, 24 Md., 149, 161, 162.
Special exceptions were taken below to the granting of this prayer, on the ground that “ there was no evidence in the cause, either of any such consideration for the agreement as therein mentioned, or of any such agreement as therein mentioned.”
We think these exceptions were well taken. Beeves, the only witness who testifies on this subject says, that on the morning of the 18th February, 1871, he called on the defendant and threatened to attach the goods of Katzenberg & Co., which were held by the defendant under a bill of sale, if Katzenberg & Co’s notes were not paid up. But he does not prove that any agreement was made by the defendant in consideration of forbearance ; on the contrary, he testifies expressly that no agreement of any
Having decided that the two prayers of the plaintiffs were erroneously granted, it becomes unnecessary to consider the second and third prayers of the defendant. These rest upon the theory that the parol evidence in the cause, if it was admissible in connection with the written memorandum, shows that the engagement of the defendant was merely to endorse the four notes, after Katzenberg & Co. had them signed — -not a contract to obtain their signature, or to pay them. In this view of the testimony, we think he is correct; but it is not material to consider this question, as we have decided that the two notes of Katzenberg & Co. offered in evidence, and the parol testimony, were alike inadmissible to supply the defects in the written memorandum required by the Statute.
Upon a consideration of the whole case, we are of opinion that there is no evidence legally sufficient to
Judgment, reversed.