16 Neb. 17 | Neb. | 1884
This cause was tried in the district court upon an agreed statement, wherein the facts are stated at some length, but
It is claimed by plaintiffs in error that the promise being to answer, for the default of Schindler is void by the statute of frauds, not being in writing, and this is the only question presented for decision.
In Young v. French, 35 Wis., 116, it is said: “Where the party promising has for his object some benefit and advantage accruing to himself, and on that, consideration makes the promise, this distinguishes the case of an original undertaking from one within the statute;” and a large
In Clapp v. Webb, 52 Wis., 641, it is said the supreme court of that state has repeatedly decided that “the alleged promise is within the statute unless it was founded upon a new and independent consideration passing between the newly contracting parties.” We conclude that if this case is taken out of the statute, it must be by virtue of a new and independent consideration passing between the parties, or by reason of some benefit and advantage accruing to the promisors, and that they on that consideration made the promise. It is claimed by plaintiff in error that the decision in Rose v. O’Linn, 10 Neb., 364, virtually disposes of this case in his favor. Although there is, as we think, a difference between that case and this, as in that a part of the services had been rendered, and it was claimed that the plaintiffs in error agreed to “see” the whole bill paid; yet the difference is so slight as not to be material, and the rule laid down in that case must govern this.
The defendant in error claims that this case is similar to> the case of Fitzgerald v. Morrissey, 14 Neb., 198, and the-case of Clopper v. Poland, 12 Neb., 69, and that they are-decisive of this. In the first case named, Morrissey had been working for a subcontractor on the grading of a. railroad for Fitzgerald; the subcontractor had failed to pay Morrissey, and he, Morrissey, had determined to abandon the work. Fitzgerald, who had a large amount of grading to do, then promised Morrissey if he would continue to work on said grade for him, that, in addition to-the usual and regular wages,'he would pay Morrissey the amount due him from the subcontractor. In consideration of this promise, Morrissey began to work for Fitzgerald. It was claimed by Fitzgerald that the promise to pay the-amount due from the subcontractor was within the statute.
The case of Clopper v. Poland is based upon the same principle. Fleury & Company were indebted to Poland, and sold certain property to Clopper, and as a part of the purchase price of said, property, Clopper agreed to pay the debt in v question, and after paying a part of it, refused to pay the remainder for the reason that the promise was void, not being in writing. This court held the promise good, as being a direct promise to pay the debt, founded upon a consideration. The payment of the debt did not increase the purchase price of the property, but was deducted from it; It was founded upon a consideration which could not be questioned, and the promise was an original one, and in no sense collateral.
In the case at bar, Morrissey received nothing for his promise. There is no intimation that Schindler’s contract would not have been performed but for the work of defendant in error. Plaintiff in error could in no sense be the gainer by reason of the defendant in error continuing to work for Schindler. The promise was clearly unsupported by any consideration. Then again it was as clearly a collateral promise. It was to “see” the debt paid. In other words, to see that Schindler paid the defendant what he would owe him for his labor. But it is claimed that as defendant in error was laboring on buildings which plaintiffs in error owned, he was benefited by having defendant continue to work thereon. We cannot so view it. But if this is the case, the advantage or benefit is more remote than the advantage gained by Rose in the case of Rose v. O’Linn, supra, for in that case the party for whose 'benefit the promise was made was the hired laborer of the
Reversed and remanded.