| Ohio | Dec 15, 1862
The draft which gave rise to the controversy .in this case, was payable “ on the 6 — 9 January, 1852.” The only doubt we feel is whether any evidence was necessary to enable the court to determine what was the intention of the parties in inserting the figures 6 — 9 in the body of the draft. To their explanation by the testimony of bankers and merchants, we see no objection, and do not think the court erred in refusing to instruct the jury,'that the draft matured on (the 12th of January, 1852, but on the contrary we think that
Ah to the sufficiency of the proof to show that the plaintiff in the action received due notice of the nonpayment of the draft, in the view we take of the plaintiffs claim, and of the issue in the pleadings, that question can not be made by the defendant. The damage sustained by the plaintiff for the breach of the obligation of the defendant, is shown, prima facie, by the judgment and its payment. If, as alleged in the answer of the defendant, the damage of the plaintiff proceeded from his failure to make defense, when defense might have been successfully made, such proof should have come, from the defendant.
This brings us to the consideration of the important question, what was the nature of the plaintiff’s claim, as shown by the pleadings and evidence ? Or, in other words, how does it appear that an obligation rested on the defendant to make good to the plaintiff the damage and loss he sustained by indorsing the draft ? And it should be observed before entering upon the inquiry, that both in the pleadings and in the evidence, the case of the plaintiff proceeds on the ground of an obligation by contract, express or implied. Upon no fair interpretation can it be regarded as a case of fraud or deceit. It is not claimed that the plaintiff indorsed the draft as surety for one man under a belief, which the defendant induced, by trick, device or false representation, that he was becoming surety for another.
The plaintiff, in fact, entered into a contract, as the in-dorser or surety of the antecedent parties on a bill of exchange. He does not deny but affirms the validity of that contract. Neither in point of fact nor of law, as shown by the pleadings or evidence, was the defendant bound by that contract. His name is not on tbe bill. It is not claimed that he was liable to the holder of the bill, in any manner, for its pajment,: nor could such a claim be made, unless on the ground of some contract between the plaintiff and defendant, to the benefit of which the holder might have been subrogated. It is equally clear, that any contract between the plaintiff
It has often been a subject of discussion, whether a verbal promise, in which the debt, default or miscarriage of a third person is involved, be within the statute of frauds and void, or be an independent contract and valid; and the cases on the subject present considerable conflict. Certain principles bearing on the inquiry are conceded in the authorities. And, first, the sufficiency of the consideration does not take the case out of the statute. There was no occasion for a statute to make void a naked promise, unsupported by a considera tion, although such promise should be in writing. And, next, there is no distinction, whether the debt or obligation of the third person be one created at the time of the making the promise, or one which previously existed.
When the promise involves the debt -or default, of a third person, the consideration of the promote may he importan* in deciding whether it can be reg^rde'j c-remdog an independent contract. When the dob* or obligation or a third
The authority cited by Kent, C.J., for his conclusion that the third of the classes of cases stated by him is not within the statute, is 1 Saund. 211, note 2. The part of the note referred to is as follows : “ But where the promise is founded upon some new consideration, sufficient in law to support it, and is not merely for the débt, etc., of another, such an undertaking, though in effect it be to answer for another person, is considered as an original promise, and not within the statute.” Citing Read v. Nash, 1 Wils. 305; 5 Mod. 205; Stephens v. Squire, 3 Burr. 1886; Williams v. Leper, 1 B. & A. 297. The same expression, new and original consideration, the use of which by Kent, C.J., has led to misapprehension, is found substantially in the note from Saunders. The expression new consideration is, in the note, qualified by “ not merely for the debt, etc., of another.” In a subsequent edition of Saunders’ Reports, published in England, after the decision in Leonard v. Vredenburg, the indefiniteness in the note is corrected. In a note, in that edition, it is said: “ Whether each particular case comes within this clause of
It will be observed that the test thus referred to, and which has been quoted above, in terms, rather refers to a debt or obligation created before the promise; but, as has been stated, this makes no difference. The case of Green v. Cresswell, in which the test was held to be applicable, was one where the obligation was created at the time of the promise. It was a promise to indemnify the plaintiff, if he would become bail for a third person. He became bail, sought to make the promisor liable, but failed, because he could not show that the defendant had incurred any liability, except from his promise. To create such liability on the part of the defendant or his property, there must certainly, in the language of Kent, O.J., be “ a new and distinct consideration, independent of the debt, and one moving between the parties to the new promise.” It is said, in the case of Mallory v. Gillett, above cited, in which the classification of Kent is elaborately explained and defended, and in a summing up of the exceptions to the statute, that the consideration “ may come from the debtor, as where he puts a fund in the hands of the promisor, either by absolute transfer, or upon a trust to pay the debt, or it may be in his hands charged with the debt as a prior lien, as in the case of Williams v. Leper, and many others. So the consideration may originate in a new and independent dealing between the promisor and the creditor, the undertaking to answer for the debt of another being one
In this case, the only consideration which is disclosed, is the damage to the plaintiff from a liability incurred upon the request of the defendant. If there be any other — if from what passed between the parties, the plaintiff could have inferred, that there was any other, he has not been able to state it in his pleadings, or exhibit it in his proof. It could not, therefore, have been a distinct consideration, independent of the debt, moving between the parties. If there was “ any liability on the part of the defendant or his property,” arising from any arrangement between him and the debtor, it is not disclosed, so that its extent and sufficiency, as a consideration, might be determined. We certainly can not conclusively infer from a mere request to “ indorse for me ” a bill drawn by a third person, that the party making the request had received a distinct consideration creating a liability upon him or his property. We should have to make the double inference, that there was a consideration, and that, in its character and extent, it was sufficient to prevent the application of the statute. In short, tested by any of the rules shown by the authorities which have been cited, the case of the plaintiff shows only a promise to indemnify against the default of a third person.
Judgment reversed.