Perrine v. Leachman

10 Ala. 140 | Ala. | 1846

COLLIER, C. J.

We can discover no sufficient ground for sustaining the demurrer in this cause. Neither count of the declaration is obnoxious to the statute of frauds. All the counts except the first alledge an undertaking in writing, to pay the plaintiff if he would rent the house, &c. to Bell, or sell him furniture, &c.;and each state with particularity such dealings and transactions between the plaintiff and Bell, and come within the scope of defendant’s promise on behalf of the latter. And as for the allegation of a breach, we can discover no objection to it, whether considered in reference to either or all of the counts.

In respect to the first count, it is only necessary to remark, that although it does not state that the defendants’ undertaking was in writing, yet it is competent to give in evidence a writing corresponding to the allegation. It has been held by this and all other courts, whenever the point has arisen, that a declaration upon a promise to pay the debt of a third person, need not alledge it to have been written, although it may be necessary to prove it.

The judgment must be reversed and the cause remanded.