1 Pa. Super. 29 | Pa. Super. Ct. | 1895
Opinion by
The question whether the defendant’s promise is within our statute of frauds (section 1, act of April 26, 1855, P. L. 308) cannot be determined by the words alone in which it was made. There are cases where the words, “ I -will see you paid,” have been construed, in the light of the pertinent facts, to be an original undertaking, and other cases where the same words have been construed to be a collateral undertaking and within the statute. There is no irreconcilable conflict between these cases. The words are not unimportant in ascertaining the intent, as is shown by the illustration quoted from Nelson v. Boynton, 44 Mass. 396-400, by the present chief justice, in Nugent v. Wolfe, 111 Pa. 471; but the circumstances of the transaction, and not the words alone, determine whether the promise is within the statute. Nor is the fact that there was a consideration for the promise decisive. “ A new consideration for a new promise is indispensable without the statute; and if a new consideration is all that is needed to give validity to a promise to pay the debt of another, the statute amounts to nothing: ” Strong, J., in Maul v. Bucknell, 50 Pa. 39. There are instances, it is true, where the consideration is of importance, as, for example, where it is either a transfer to the promisor of the creditor’s claim,
The plaintiff and William Burke were working in the cigar factory of Allen Kutz. The defendant had advanced the money to Kutz to go into business, and was surety on his United States revenue bond. There was evidence that Kutz neglected his
Inasmuch as the allowance of the amendment is not complained of, it is perhaps of no importance that the suit was originally brought against the defendant as surety. But the other facts may be referred to properly, because they tend to show (1) the construction which the plaintiff put upon the alleged agreement — a construction inconsistent with his present claim that the defendant became the principal debtor; (2) that there was no change in the relation of employer and employee existing between Kutz and the plaintiff. The plaintiff continued to work, not only in Kutz’s shop, but' for Kutz, and the latter continued to pay him for his services as before. The facts of the case plainly distinguish it from Merriman v. McManus, 102 Pa. 102. There can be no question that Kutz’s liability continued; that, as between him and the defendant, “ the superior liability was his; ” that the plaintiff primarily looked to him for his pay, and only looked to the defendant for that part of his wages which Kutz failed to pay. In the case cited the original contract under which the plaintiff began the work was abandoned, and the only persons interested in the finishing of the work were the defendants, who would receive an immediate tangible benefit thereby. The decision was put upon the ground very distinctly stated by Gordon, J., “ that the defendants agreed to pay for what they got and only for what they got, and that because they would get what they wanted on no other terms.” The case of Jefferson Co. v. Slagle, 66 Pa. 202; was decided upon the same ground.
We do not think that the expression of a purpose by the defendant to take charge of the business, or to take it out of Kutz’s hands, added anything to the undertaking. It was no part of the promise. That it was an additional inducement to the plaintiff may well be. He may have been led to expect that .a change in the business would be .made soon, and then he would have a sure paymaster; but the question is not whether the inducements held out to him were a sufficient consideration to support the promise, but whether the promise, in so far as it related to, and was intended' and understood to relate to, the work done by him before the change in proprietorship took place, or after Kutz resumed control of his business, was a
Judgment affirmed.