174 Mo. App. 707 | Mo. Ct. App. | 1913
Plaintiff’s action is to recover $663.70 on an account. Defendant demurred to the petition on the ground that it did not state a cause of action. The trial court sustained the demurrer and plaintiff' appealed.
The ground of the demurrer was that the petition stated the original debt was that of another person which defendant had promised to pay and that being the verbal promise to pay the debt of another it was void under the Statute of Frauds (Sec. 2783, R. S. 1909) providing that, “No action shall be brought to
The parties have ignored the law that when an agreement involving the Statute of Frauds is alleged in a petition, it is not necessary that it should be alleged to be in writing, since it will be presumed the agreement stated is a legal one. There should have been an answer denying an agreement and then if the one proven is not in writing the statute may be invoked. A demurrer is not the way in which to obtain the benefit of the Statute of Frauds. [Phillips v. Hardenburg, 181 Mo. l. c. 472.] But as the same question will arise on a trial, we proceed to an examination of the matters involved.
It is alleged in the petition that J. O. -Harrington being then indebted to plaintiff on the account defendant agreed with plaintiff that if the latter would “release and discharge J. C. Harrington from the payment of said debt he would pay said debt as Ms own. ’ ’ That plaintiff “accepted the agreement and did release the said debtor J. C. Harrington.”
The case presents a vexed question arising from conflict in the decisions. It is of course, agreed by all that there must be a consideration to support the third party’s promise. Ordinarily a consideration may be made up of either benefit to the promisor, or of harm to the promisee; but in cases- under this statute it is stoutly maintained that the latter consideration does not avail as a support to a verbal promise to pay the debt of another, in the face of the statute requiring it to be in writing. The ruling is that, in order to make the statute inapplicable, the object of the promise must be some benefit to the promisor, the payment of the original debtor’s debt being a mere incident. It is stated in these words in a leading case:
But in numberless instances cases arise thought to be within the statute and which are so confusingly near to it as to require close scrutiny, to discover the dividing line. The statute invalidates a verbal promise to pay the debt of another, and it is frequently the hardest matter to determine whose debt is a given obligation. Although one party may be the cause of the debt he may not be the debtor, for the original obligation may rest upon a third party. As if the latter takes a person to a merchant and says let this man have certain goods and I will pay for them; there is an original indebtedness by the promissor and the contract is not to pay the debt of the man who gets the goods but his own. Many illustrations might be given. In this illustration the debt never existed against the party getting the goods.
But we need not depend upon the foregoing cases having made that qualification in cases where the question was not directly up for decision. There is abundant authority where the question was directly involved. And while some may treat the question of consideration for the promise differently from others, all agree that if, the new promise is in fact made on the discharge by the creditor of the original debtor, that that debt is gone and a new one created with a substituted debtor. [Underwood v. Lovelace, 61 Ala. 155; Whittemore v. Wentworth, 76 Maine, 20; Brown v. Weber, 38 N. Y. 187, 191; Fain v. Turner, 96 Ky. 634, 638; Wood v. Corcoran, 1 Allen, 405; Packer v. Ben
We find the same interpretation of the statute is given in England. In Goodman v. Chase, 1 B. & Ald. 297, there were two arguments after which Lord Ellenbobough stated the opinion of the court as follows: “By the discharge of Chase Junior with the plaintiff’s consent, the debt as between those two persons was satisfied. No case can be cited in which such a discharge has not been held, quite sufficient. Then if so,, the promise by the defendant here is not a collateral but an original promise, for which the consideration is the discharge of the debt as between the plaintiff and Chase Junior. That being so, it becomes wholly unnecessary to consider the question arising out of the construction of the fourth section of the Statute of Frauds. ’ ’
In Sane v. Burghart, 1 Q. B. 933, the original debtor was discharged by the creditor in consideration of which Burghart agreed to pay the debt and it was held to be an original undertaking by him to the creditor to which the statute did not comply.
The foregoing considerations demonstrate that the petition stated a case not within the statute and that therefore the demurrer should have been overruled. The judgment is reversed and the cause remanded.