31 Mich. 113 | Mich. | 1875
If the plaintiff below was entitled to recover at all upon the evidence, it could, only have been upon the special count upon the special contract declared upon. The evidence very clearly made no ease for a recovery upon the common counts.
The only contract alleged and proved was a contract, between the defendant and Eice, to pay the note of the latter to the plaintiff, who was no party to that contract, who gave no consideration for, and was in no way bound by it. The only consideration paid was paid by Eice, and he was the only party to be injured by the breach of the contract. The plaintiff still retained the note and Eice’s liability upon it.
He parted with nothing, and though defendant may afterwards have expressly promised the plaintiff to pay him, there was, as between him and the plaintiff, no consideration for this promise; and defendant, notwithstanding such promise to the plaintiff, was still liable to Eice, with whom his agreement was made, and from whom the only consideration was received. But if this consideration, received by the defendant from Eice for his promise to him, could be treated as sufficient to sustain in other respects the defendant’s express promise to the plaintiff, this was clearly collateral only to the note of Eice ’to the plaintiff, which he continued to hold, and which he had the same right to enforce as if this collateral agreement had not been made. The defendant’s promise to the plaintiff was therefore very clearly a promise to pay the debt of another, and within the statute of frauds. All the questions in this case have been several times decided by this court. As to the absence of all contract relation between the plaintiff and defendant, — see Pipp v. Reynolds, 20 Mich., 88; Turner v. McCarty, 22 Mich., 265; — and that the special promise to the plaintiff is collateral and within the statute of frauds,—
The judgment must be reversed, with costs, and a new trial awarded.
