4 Blackf. 322 | Ind. | 1837
This was an action of debt commenced in October, 1834, before a justice of the peace. The defence relied on was a certain matter of set-off. The justice gave judgment for the defendants.
In the Circuit Court, the parties filed the following agreed case, on which the defendants obtained a judgment:—
“ James Hackleman, administrator, v. Abraham Boys and Samuel Miller. The plaintiff being at the time administrator of the estate of Joseph Moffitt, deceased, sold at public auction agreeably to law, in the administration of the estate, goods and chattels which he had inventoried, to Miller one of the defendants, to the amount of the note on which the suit is
The statement also contains some remarks relative to the probable insolvency of the estate of Moffitt, which it is not necessary to notice.
The only question here involved is, whether the promise of the plaintiff to admit the set-off is binding on him, or whether it is void as being within the statute of frauds?
Th'e words of the statute are,—“No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate, or whereby to charge the defendant, upon any special promise, to answer for the debt, default, or miscarriage of another person, &c., unless the agreement, &c. shall be in writing,” &c. Rev. Code, 1831, p. 269
There is some difficulty in coming to a satisfactory opinion on this subject; but we are disposed to believe that the promise is not within the mischief intended to be remedied by the statute. It is settled, “ that if A. says to. B., pay so much money to C. and I will repay it to you, it is an original, independent promise; and if the money be paid upon the faith of it, it has always been deemed an obligatory contract, even though it be by parol; because there is an original consideration moving between the immediate parties to the contract.’* Per Story, J., in Townsley v. Sumrall, 2 Peters, 182.
There can be no doubt but that, under our statute, the writing filed as a set-off is assignable; and we have heretofore decided, that the amount of the note is prima facie evidence that that was the sum paid for the assignment. Youse v. M'Greary, May term, 1829. It must be taken for granted, therefore, in this case, the contrary not appearing, that the defendant paid Whitemore for the assignment, the amount of the instrument assigned; and the record shows, that the assignment was obtained by the defendant, at the instance of the plaintiff, and upon the faith of his express promise that the amount should be allowed to the defendant. The payment, thus made, is a damage to the defendant, and is a valid consideration for the promise in question made by the plaintiff.
The case of Townsley v. Sumrall, to which we have already referred, so far as respects the present cause, is as follows:— Townsley verbally promised Sumrall, that, if the latter would obtain from one Waters a bill of exchange for a certain sum, to be drawn by Waters upon Townsley in favour of Sumrall, he Townsley would accept the bill. Sumrall, accordingly, for a valuable consideration, procured such a bill from Waters, but Townsley then refused to accept it,—having in his hands no funds of the drawer. Sumrall then sued Townsley on his promise to accept the bill; and the defendant contended that the promise, not being in writing, was void. The Court decided the promise to be valid, and said “ that if a person—in consideration that another will purchase a bill already drawn, or to be thereafter drawn, and as an inducement to the purchase—undertake to accept it, and the bill be drawn and pur
This case of Townsley v. Sumrall is, in principle, similar to the one before us.
The judgment is affirmed with costs de bonis propriis. To be certified, &c.
Accord. Rev. Stat. 1838, p. 311.