156 N.C. 553 | N.C. | 1911
Lead Opinion
after stating the case: The liability of a promisor to answer, “upon special promise, the debt, default, or miscarriage of another person” has been considered in numerous decisions of this Court, and there is frequently much difficulty in determining whether a particular promise is within the statute.
The term “special promise” means an express promise, and not one implied by law. Browne Stat. Frauds, sec. 166.
Whether oral or in writing, it must have a consideration to support it (Draughon v. Bunting, 31 N. C., 10; Stanly v. Hendrix, 35 N. C., 87; Combs v. Harshaw, 63 N. C., 198; Haun v. Burrell, 119 N. C., 547); but if in writing, the consideration need not appear in the writing, and may be shown by parol. Nichols v. Bell, 46 N. C., 32; Haun v. Burrell, 119 N. C., 547.
If the promise is based on a consideration, and is an original obligation, it is valid, although not in writing. Hospital Assn. v. Hobbs, 153 N. C., 188.
The obligation is original if made at the time or before the-debt is created and the credit is given solely to the promisor, as in Morrison v. Baker, 81 N. C., 80; Sheppard v. Newton, 139 N. C., 536, or if credit is given on the promises of both, as principals and as jointly liable, and not on the promise of one as the surety for the other. Browne Stat. Frauds, sec. 197; Horne v. Bank, 108 N. C., 119.
So is a promise, made after the debt is created, when by reason of the promise the original debtor is released (Sheppard v. Newton, 139 N. C., 379; Jenkins v. Holly, 140 N. C., 379), and also if it is a promise to pay out of funds placed in the hands of the promisor by the debtor (Stanly v. Hendrix, 35 N. C., 86; Threadgill v. McLendon, 76 N. C., 24; Mason v. Wilson, 84 N. C., 53; Voorhees v. Porter, 134 N. C., 604), or if a promise based on a new consideration of benefit or harm passing between the promisor and the creditor. Whitehurst v. Hyman, 90 N. C., 489.
If one, under the former practice, .was arrested in a civil action, and was released on the oral promise of another to pay the' debt, the promise was binding because the release from arrest satisfied the original debt (Cooper v. Chambers, 15 N. C., 261; Draughon v. Bunting, 31 N. C., 10), but it was otherwise of an oral promise to pay upon condition that the creditor would not arrest the debtor, because the debtor remained liable. Britton v. Thrailkill, 50 N. C., 331; Rogers v. Rogers, 51 N. C., 300; Combs v. Harshaw, 63 N. C., 198.
Where the promise is for the benefit of the promisor, and he has a personal, immediate, and jmcuniary benefit in the transaction, as. in Neal v. Bellamy, 73 N. C., 384, and in Dale v. Lumber Co., 152 N. C., 653, or where the promise to pay the debt of another is all or part of the consideration for property conveyed to the promisor, as in Hockaday v. Parker, 53 N. C., 17; Little v. McCarter, 89 N. C., 233; Deaver v. Deaver, 137 N. C., 242; Satterfield v. Kindley, 144 N. C., 455; or is a promise to make good notes transferred in payment of property, as in Adcock v. Fleming, 19 N. C., 225; Ashford v. Robinson, 30 N. C., 114, and in Rowland v. Rorke, 49 N. C., 337, the promise is valid although in parol.
If, however, the promise does not create an original obligation, and it is collateral, and is merely superadded to the promise of another to pay the debt, he remaining liable, the promisor is not liable, unless there is a writing; and this is true whether made at the time the debt is created or not. Smithwick v. Shepherd, 49 N. C., 197; Bagley v. Sasser, 55 N. C., 350; Scott v. Bryan, 73 N. C., 582; Rowland v. Barnes, 81 N. C., 239; Haun v. Burrell, 119 N. C., 547; Garrett-Williams Co. v. Hamill, 131 N. C., 59; Sheppard v. Newton, 139 N. C., 535, and Supply Co. v. Finch, 147 N. C., 106.
’In our opinion, this case falls within the last class.
There is no evidence of benefit to the intestate, and while the jury would have been justified in finding from the evidence
Tbe verified account and tbe evidence of tbe plaintiff were competent to prove tbe indebtedness of Cook, as neither involved a transaction or conversation witb tbe deceased, and there would be error in their exclusion, wbicb would entitle tbe plaintifE to a new trial, if there was evidence of a valid promise of tbe intestate to pay.
It was because bis Honor thought there was no such evidence tbat be ruled as be did, and we concur in bis opinion.
Tbe definition of a promise to answer for tbe debt 'of another, wbicb is not enforcible, adopted in our Court and applicable here, is: “An undertaking by a person not before liable, for tbe purpose of securing or performing tbe same duty for wbicb tbe party for whom tbe undertaking is made continues liable.” Sheppard v. Newton, supra. Tested by this rule, we think tbe action cannot be maintained.
Tbe account began on 22 February, 1906, and ended 27 March, 1907. Tbe witness for tbe plaintiff, Bryant, testified, tbat about tbe time of tbe last date (27 March, 1907) tbe plaintiff told him not to let Cook have any more goods without a written order from Powell, and tbat Cook bad no credit at tbat time. Tbe inference is that Cook bad credit prior to tbe time, and no goods were afterwards sold to him. It is true tbat same witness also said tbat for all goods sold to Cook, credit was extended to Powell; and this would be entitled to great weight if be bad stated something said or done by Powell authorizing tbe extension of credit. A similar statement was made by a witness in Garrett-Williams Co. v. Hamill, 131 N. C., 59, and was held insufficient to charge tbe promisor.
Again he says, in July, 1906, he beard Powell tell the plaintiff to let Cook have goods, and be would see tbat they were paid for. He does not state whether or not any goods were sold to Cook at tbat time, and so far as we can see, tbe promise related to a single transaction, and there is no evidence tbat it is embraced in tbe account sued on.
The evidence of the witnesses Brewer and Bishop does not show liability on the part of the intestate.
The most material statement made by either is by Brewer: “That in March, 1906, he was at Powell’s house and saw some one going out the gate, and that he asked Mr. Powell who it was, and he replied that it was Charlie Peele, who had been to see him about Cook’s account, and that he told him that it was all right.”
We will assume that “him,” as last used, applies to Peele, although it is not certain; but, if so, it was “Cook’s account” that was all right, and there is no suggestion in the evidence that Cook was not liable therefor. Suppose he had said, “Cook owes Peele an account, and I have promised to pay it.” No one would contend that this would create a legal liability, and the evidence is not as strong as this.
The action is against the estate of a deceased person. The intestate lived one year and eight months after the last item in the account, and no action was instituted against him during 'this period. The defendant administratrix has no personal knowledge of the transactions, and death has destroyed any opportunity of replying to the evidence of the plaintiff. Under these circumstances the evidence should be carefully examined, and if it does not conform to the requirements of the law, it should be so declared.
The ledger and day-book of the plaintiff were properly excluded, as they were mere declarations of the plaintiff in his own interest. Bank v. Clark, 8 N. C., 36; Bland v. Warren, 65 N. C., 374; Dyeing Co. v. Hosiery Co., 126 N. C., 294.
We find
No error.
Dissenting Opinion
dissenting: It is suggested, in opening the opinion of the Court, that there is frequently much difficulty in determining whether a particular promise to answer for the debt, default, or miscarriage of another person falls within the
In Sheppard v. Newton, 139 N. C., 536, tbe judge held, as did tbe lower court in this case, tbat tbe promise was within tbe statute, and ordered a nonsuit. This ruling was reversed by this Court upon appeal, and a new trial awarded, Justice Holes saying, in tbe course of tbe opinion: “A statement on tbe same subject, somewhat more extended and very satisfactory, will be found in Clark on Contracts, p. 67, as follows: ‘There must either be a present or a prospective liability of a third person for wbicb tbe promisor agrees to answer. If tbe promisor becomes himself primarily and not collaterally liable, tbe promise is not within tbe statute, though the benefit from tbe transaction accrues to a third person. If, for instance, two persons come into a store and one buys, and the other, to gain him credit, promises the seller, “If he does not pay you, I will,” this is a collateral undertaking, and must be in writing; but if
We will see presently, when I review the evidence, that credit was given to Powell alone. It was not necessary that Powell should say, as intimated in the opinion, that credit should be given to him alone, in order to bind him, or that he should have expressly assented to such a course; but if he requested that the goods be sold on his credit, as he most assuredly did, and Peele, acting upon his request and induced thereby, sold the goods on his credit and looked to him alone, the promise was binding as an original one. It was, at least, as Chief Justice Ciarle said, and as Justice Holce clearly suggests, a question for the jury as to what was meant and as to “how the credit was given.” Sheppard v. Newton, supra. Quoting from that case again, its concluding words: “Applying these principles to the foregoing statement of the evidence, the Court is of opinion that there was error in directing a nonsuit, and the plaintiff is entitled to have his cause submitted to the jury on the question whether the defendant is not answerable as the original or present debtor on the plaintiff’s demand.” This is striking language and worthy of much consideration. It would attract the attention of any one familiar with the evidence in this case, as showing a close similarity between the two.
Let me now notice two other eases decided by this Court. In White v. Tripp, 125 N. C., 523, it appeared that the goods were
Powell had a business purpose, and, too, a pecuniary one to subserve, as appears in this case, as Cook was his tenant, without credit and unable to get supplies to make his crop without the credit of Powell at Peele’s store. He made the promise to advance his own interests, and no doubt received the full benefit of it in the way of rent and, perhaps, enough besides to pay for the goods and supplies Peele furnished to his tenant Cook, at his request, as he had a lien under the statute for both rent and advancements. Therein consists the extreme hardship of the Court’s ruling, and the facts of the casé so strongly appeal to my sense of justice and right, as' did the facts in Liverman v. Gaboon, ante, 187, at this term, where the statute of limitations was pleaded, that I could not, and cannot in this case, refrain from giving my reasons at length for my earnest dissent from .the conclusion, as well as the reasoning, of the Court. I think that in both eases the defendants were seeking to take an unconscionable advantage of the plaintiffs, and one which the law, according to my understanding of it, did not countenance, much less justify. The statute of limitations and the statute of frauds are to be considered as good legal defenses, when applicable to the facts, but they were designed, as Chief Justice Pearson said in Threadgill v. McLendon, supra, “to prevent fraud” and not as a cloak for it.
Our judicial duties at this term have been so onerous and exacting that I have little or no time to examine the authorities very closely, but a mere cursory reading of them warrants me in saying that they fully support my conclusion. “An oral promise to pay for goods furnished to a third person at the request of the promisor, and on his sole credit, is an original undertaking and not within the statute of frauds. The same rule applies in respect of other considerations moving from the promisee and beneficial to a third person at the request and upon the sole credit of the promisor, such as the advancing of money, the rendering of services, renting premises, bailing goods or supplying board.” 29 Am. and Eng. Enc. of Law, 923-930, where the law is fully stated and authority will be found covering every point in this case, and especially does it sustain the view that the case is, at least, one for the jury. In Morrison v. Baker, 81 N. C., 76, it was held that “Where goods are furnished to A. upon the unconditional promise of B. to pay for them, it is not an undertaking to pay the debt of another, but the personal debt of B.”
It is clear to my mind, upon the conceded facts, that the promise of Powell to Peele was, in law, not a collateral, but an original one; but if not so, as matter of law, the question as to the nature of the promise should have been submitted to the jury-
Now as to the evidence: Luther Bryant testified: “I was a clerk in plaintiff’s store from 1 January, 1906, till the end of the year 1908; for all goods sold to J. T. Cook from 22 February, 1906, to 27 March, 1907, the credit therefor was extended to Edgar Powell; that about the time of the last-men
It is true, be afterwards said tbat Powell told plaintiff “to let Cook have tbe goods and be would see tbat they were paid for.” But bow does tbis affect Powell’s liability? It does not exclude tbe idea tbat be would be solely responsible to Peele. Identical words were not allowed any sucb effect in Threadgill v. McLendon, supra. They ratber strengthen tbe other evidence. Tbe Court says it does not appear tbat be let Cook have any goods at tbat time. Why, Luther Bryant bad already said tbat there was a running account at tbe store from 22 February, 1906, to 27 March, 1907, goods having been furnished between those dates by Peele to Cook, solely upon Powell’s credit. It is also stated by tbe Court, .in tbe opinion, tbat Peele told bis clerk, Bryant, about 27 March, 1907, not to let Cook have any more goods without a written order from Powell, and tbat Cook bad no credit, and it is argued from tbis tbat Cook bad credit prior to tbat time and no goods were afterwards sold to him; but no sucb inference, I respectfully submit, is at all warranted. Bryant expressly stated tbat Cook never bad any credit between 22 February, 1906, and 27 March, 1907. It makes no difference whether be got any goods afterwards or not. Besides, tbe court excluded all evidence as to tbe account between Peele and Cook, and thus prevented tbe plaintiff from proving and developing bis case. His ruling was wrong, of course, as tbe transaction between Peele and Cook was no transaction with tbe deceased party, Powell. Tbe reason why Bryant was instructed not to let Cook have any more goods without an order from Powell was tbat be was increasing bis account to sucb an extent and so rapidly tbat be thought it right to notify Powell and get his order. Powell himself referred to tbis after-wards, according to tbe witness F. L. Bishop. It also appears from Bishop’s and Brewer’s testimony, tbat Powell admitted his liability to Peele and stated tbat it was “all right.” Tbis kind of admission is held to be some evidence of an independent and original promise, in tbe beginning of the transaction, to pay
The fact that Powell is dead is utterly irrelevant to the question. The statute of frauds does not protect a man because he is dead, any more than it does a living person. They both stand with reference to it on an equality — one has no greater right under it and is entitled to no greater consideration than the other.
The ease of Garrett-Williams Co. v. Hamill, 131 N. C., 57, so much relied on by the Court, with other cases of a like kind, and which was strenuously urged upon our attention by defendant’s counsel as directly in point, does not fit this case by any means. The promise there was by T. A. Hamill to pay if F. A. Hamill did not. “We went to Whitakers, and T. L. Hamill bought goods and said ship goods in future to F. A. Hamill whenever he needed them until he notified us not to ship, and he would see us paid, and to collect from E. A. Hamill when I came around, and if F. A. Hamill failed to pay, he
It seems to me that the necessity which the Court found for explanatory argument upon the facts, in order to show that the statute does not apply, is a cogent reason for sending the case to a jury.
My conclusion is (1) that the plaintiff was deprived of the right to develop his case by erroneous rulings of the court upon the testimony, and (2) that the evidence is such as to require the intervention of a jury; and for either or both reasons the nonsuit should be set aside and a new trial ordered.
