Frank v. Miller

| Md. | Jul 2, 1873

Bartol, O.' J.,

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 two prayers, place their claim to recover on two alternative grounds.

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 require argument or authority. It was admitted at the trial the paper was in the hand-writing of the defendant, and it was also admitted, that, “ according to mercantile usage in Baltimore, the figures 3, 6, 9, 12, in the memorandum, mean three months, six months, nine months and twelve months.” And it was proved that the paper was sent by the defendant to the plaintiffs on the 18th day of February, 1871. But this admission does not materially assist the plaintiffs’ case; the memorandum is still left imperfect and altogether insufficient to prove the alleged agreement. Without referring to other defects, there is nothing on the face of the paper to indicate the subject-matter to which it relates ; the names of Katzenberg & Go. are not mentioned, nor is there anything to show that it refers to any debt due by them to°the plaintiffs. “ 2 notes due” might, for all that appears on the paper, as well refer to notes of the defendant, or of any other person, as of Katzenberg & Co., and might be made to bind the defendant with respect to any two notes, for any arpount, if parol proof were admissible to supply such defects in the writing. It is only by parol proof the plaintiffs seek to show that the two notes of Katzenberg & Co., mentioned in the nar. were the subject-matter referred to. But such evidencé is wholly inadmissible. A contract required by the Statute to be in writing, “cannot be partly in writing and partly in parol.” Moale vs. Buchanan, 11 G. & J., 314. It is elementary law that “ the contract must be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof.” 2 Kent, 511, m.

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 memorandum, and it is impossible to connect them except by parol proof, and to allow that to be done, would be an evasion of the Statute, and would open the door to the very mischiefs the Statute was intended to prevent. This we take to be well settled, the law is so laid down by Kent, vol. 2, 511, and abundantly established by the authorities ; but it is not necessary to cite them, it was so decided in Moale vs. Buchanan, 11 G. & J., 314-322.

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 kind was made, before the memorandum was sent. But, we think the prayer is defective in not stating any new and valid consideration'to support the alleged agreement. It does not state that there was any agreement on the part of the plaintiffs to forbear issuing an attachment,but merely submits to the jury to find that the defendant promised for the purpose of preventing it. Moreover, the prayer does not state that the plaintiffs had,any legal right to maintain an attachment against property held by the defendant, for a debt due them by Katzenberg & Co. “The mere forbearance of a claim or demand before suit brought, which is not in fact a legal demand, is not of itself a sufficient consideration to support a promise.” Hartle vs. Stahl, 27 Md., 172. We refer also to Wade vs. Simeon, 15 L. J., (N. S.) Common Pleas, 118, 119, to the same effect. We are of opinion that it was error to grant the plaintiffs’ second prayer, both for the want of evidence to support it, and because of defects in the prayer itself.

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 entitle the plaintiffs to recover under any one of the counts in the declaration, and the defendant’s fourth prayer to that effect ought to have been granted. The judgment will be reversed, without ordering a new trial.

(Decided 2nd July, 1873.)

Judgment, reversed.