76 Ark. 292 | Ark. | 1905
(after stating the facts.) The question presented by this appeal is whether the promise of the defendant upon which the plaintiff seeks to recover comes within the statute of frauds, and is invalid because not in writing. Counsel for defendant contends that, conceding the testimony of plaintiff to be true as the jury has found it, the substance of the whole transaction was an agreement by the defendant Long to pay the debt of the barber Keath, and that such an agreement is within the statute, and must be in writing in order to bind the defendant. But, while the price of the work and the material had been agreed on between McDaniel and Keath, McDaniel did not order the material nor commence the work until Long promised to pay for it if Keath did not. The bath tubs, fixtures and other improvements were to be put in a building owned by Long, and the jury were justified in finding that it was beneficial to him to have such improvement made, and that, in order to induce McDaniel to order the material and do the work, he made the promise. If the testimony of McDaniel was true, he was induced to order the material and do-the work by virtue of this promise of Long that he would see that plaintiff was paid. It was then a debt of Long, as well as of Keath, and the promise of Long to pay was founded on a consideration directly beneficial to him, and the statute does not apply.
“Where,” says the Court of Appeals of New York, “the primary debt subsists and was antecedently contracted, the-promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such. that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor.” White v. Rintoul, 108 N. Y. 222.
No objections are urged' against the instructions; and while the case is a close one on the facts, we think the evidence sufficient to support the judgment.
The newly discovered evidence for which the defendant also asked a new trial was cumulative, and on the whole case we are of the opinion that-the judgment should be affirmed.
