Reed v. Holcomb

31 Conn. 360 | Conn. | 1863

Hinman, C. J.

It appears to us that the statute of frauds does not apply to this ease. We think the defendant never intended to become the surety of Frazier, Mills & Co. in making the promise that he did make, and that the plaintiff never intended to accept of his undertaking as that of a surety, or as at all collateral to their liability. It is often difficult from the mere words in which a promise is made to determine whether any credit was given to a third person, and the undertaking therefore collateral to the engagement or liability of such person, or whether it was a wholly independent and original undertaking. In such cases courts must rely upon the circumstances of each particular case, and its general features, in order to ascertain the intention of the parties, and how they viewed it, where it is doubtful whether it was a contract of suretyship or guaranty, or an original undertaking. Now in this case the defendant wished to borrow money which he could obtain upon the plaintiff’s indorsement, but could not upon' the note of Frazier, Mills & Co. without such indorsement, and as he had their note he preferred that the plaintiff should indorse it rather than to make a new note of his own to be indorsed. But on requesting the plaintiff to indorse their note he declined to do it, 011 the ground of their want of responsibility, until the defendant promised that if he would do it, he, the defendant, would pay it when due, and, in case the plaintiff had any thing lo pay by reason of his indorsement, he would repay the same, and fully indemnify and save the plaintiff harmless. This in substance, we think, was the same as if the plaintiff had indorsed the defendant’s own note to enable him to raise money upon it. Of course no one would doubt his liability on such a transaction. The plaintiff gave no credit whatever to the name of Frazier, Mills & Co., but relied entirely upon the undertaking of the defendant. In principle it is very similar to the case of Brown v. Curtiss, 2 Comst., 226, which, though in form a promise to answer for the debt or default of another, was yet held to be in substance an engagement to pay the guarantor’s own debt in a particular way, and therefore not within the statute. The section of the statute which is supposed to be applicable to the case was not intended to protect parties from any other contracts than those of suretyship or guaranty for the payment of some debt or the performance of some duty by a third person. But if no credit is given to such third person, and the consideration of the promise does not move from him, and he is not to be benefited by it, the statute did not intend to make void the promise because such third person might also be primarily liable for the same debt or duty. “ If,” says Judge Bronson, in Johnson v. Gilbert, 4 Hill., 178, “ A promise B, upon a sufficient consideration moving wholly between them, that a stranger will pay a sum of money or do any other act, this is an original undertaking and not within the statute ; and it makes no difference whether the stranger is under an obligation to do the act or not.” The same principle was stated in Alger v. Scoville, 1 Gray, 391, where it is laid down that “ a promise, the leading object of which is a benefit to the promisor, which he did not before enjoy, is not within the statute of frauds, although its effect be to discharge another from an obligation.” If the promise is on a sufficient consideration moving between the immediate parties to it, and from which the prom, isor is to derive a benefit, in view of which the promise is made, it then becomes a new and independent contract existing entirely between the immediate parties to it. The benefit which the original debtor may derive from it is incidental, and in no respect the object of the parties, and ought not therefore to affect the validity of their contract. Cross v. Richardson, 30 Verm., 641. Leonardo. Vredenburgh, 8 Johns., 23.

But in this case there was no benefit whatever to the origi nal debtors arising from the plaintiff’s indorsement of their note. Their liability to pay it was not altered except in respect to the party to whom it was payable. It was not discounted by the bank for their benefit, but for the defendant; and they obtained nothing in consequence of it. In this respect it is very distinguishable from the case of Green v. Cresswell, which was principally relied upon by the defendant. In that case the bailbond, though' given at the defendant’s request, was still given for the sole benefit of the arrested debtor, and the only object of it was to procure, his liberation from imprisonment. But in this case the indorsement was for the entire benefit of the defendant, to enable him to borrow money upon the note. The plaintiff had no dealings with the makers of the note, and refused to rely on their responsibility at all, and the sole consideration for the indorsement being the defendant’s promise to pay or see that the note was paid at maturity, it seems very ungracious now, after he has obtained the money upon the indorsement which the plaintiff was under no obligation to make, to attempt to protect himself from liability because his promise was not in writing.

We are therefore of opinion that a new trial ought not to be granted, and so we advise the superior court.

In this opinion the other judges concurred.